{"id":21648,"date":"2023-11-16T12:12:00","date_gmt":"2023-11-16T12:12:00","guid":{"rendered":"https:\/\/laweuro.com\/?p=21648"},"modified":"2023-11-16T12:12:00","modified_gmt":"2023-11-16T12:12:00","slug":"case-of-shchurko-and-otryshko-v-ukraine-the-applicants-alleged-that-they-did-not-receive-adequate-medical-care-in-detention","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21648","title":{"rendered":"CASE OF SHCHURKO AND OTRYSHKO v. UKRAINE – The applicants alleged that they did not receive adequate medical care in detention"},"content":{"rendered":"

Having 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 Nevmerzhitsky v. Ukraine, no. 54825\/00, \u00a7\u00a7 103-05, ECHR 2005 II, Melnik v. Ukraine, no. 072286\/01, \u00a7\u00a7 104-06, 28 March 2006 and Logvinenko v. Ukraine, no. 13448\/07, \u00a7\u00a7 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. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention<\/strong>.<\/p>\n

\n

Full text of the document.<\/em><\/p>\n

European Court of Human Rights
\nFIFTH SECTION
\nCASE OF SHCHURKO AND OTRYSHKO v. UKRAINE<\/strong>
\n(Applications nos. 29857\/19 and 3529\/21)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n16 November 2023<\/p>\n

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

In the cases of Shchurko and Otryshko v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nCarlo Ranzoni, President,
\nLado Chanturia,
\nMar\u00eda El\u00f3segui, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 12 October 2023,<\/p>\n

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

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

1. The 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. Notice of the applications was given to the Ukrainian Government (\u201cthe Government\u201d).<\/p>\n

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

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

4. The applicants alleged that they did not receive adequate medical care in detention. In application no.\u00a03529\/21 the applicant also raised a complaint under Article 13 of the Convention.<\/p>\n

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

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

5. Having 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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/strong><\/p>\n

6. The applicants complained principally that they were not afforded adequate medical treatment in detention. They relied on Article\u00a03 of the Convention.<\/p>\n

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.<\/p>\n

8. The Court reiterates that the \u201cadequacy\u201d of medical assistance remains the most difficult element to determine (see Blokhin v.\u00a0Russia\u00a0[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, for example,\u00a0Gorbulya v.\u00a0Russia, no.\u00a031535\/09, \u00a7 62, 6 March 2014, with further references and Pokhlebin v.\u00a0Ukraine, no.\u00a035581\/06, \u00a7 62, 20 May 2010, 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, with further references and Kolesnikovich v. Russia, 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, for instance, Sadretdinov v.\u00a0Russia, no.\u00a017564\/06, \u00a7\u00a067, 24\u00a0May 2016, with further references and Konovalchuk v. Ukraine, no.\u00a031928\/15, \u00a7\u00a052, 13\u00a0October 2016, with further references)<\/p>\n

9. Having 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 Nevmerzhitsky v.\u00a0Ukraine, no. 54825\/00, \u00a7\u00a7 103-05, ECHR 2005 II, Melnik v.\u00a0Ukraine, no.\u00a0072286\/01, \u00a7\u00a7 104-06, 28 March 2006 and Logvinenko v.\u00a0Ukraine, no.\u00a013448\/07, \u00a7\u00a7 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.<\/p>\n

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

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/strong><\/p>\n

11. In application no.\u00a03529\/21 the applicant also submitted a complaint under the Article 13 of the Convention about the lack of an effective remedy in domestic law in respect of inadequate medical treatment in detention facilities (see appended table). This complaint is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 13 of the Convention in the light of its well-established case-law (see Melnik, cited above, \u00a7\u00a7 113-16, and Logvinenko, also cited above, \u00a7\u00a7 84-85).<\/p>\n

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

12. Article 41 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

13. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Logvinenko, cited above, \u00a7\u00a7 89-95), the Court considers it reasonable to award the sums indicated in the appended table.<\/p>\n

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

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

2. Declares the applications admissible;<\/p>\n

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

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

5. Holds<\/p>\n

(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;<\/p>\n

(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.<\/p>\n

Done in English, and notified in writing on 16 November 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Carlo Ranzoni
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

______________<\/p>\n

APPENDIX<\/strong>
\nList of applications raising complaints under Article 3 of the Convention
\n(inadequate medical treatment in detention)<\/p>\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong>
\nDate of introduction<\/strong><\/td>\n		Applicant\u2019s name<\/strong>
\nYear of birth<\/strong>
\n\u00a0<\/strong><\/td>\n		Representative\u2019s name and location<\/strong><\/td>\nPrincipal medical condition<\/strong><\/td>\nShortcomings in medical treatment<\/strong><\/td>\nOther complaints under well-established case-law<\/strong><\/td>\nAmount awarded for pecuniary and non-pecuniary damage per applicant<\/strong>
\n(in euros)[i]<\/a><\/strong><\/td>\n		Amount awarded for costs and expenses per application<\/strong>
\n(in euros)[ii]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\n29857\/19
\n27\/05\/2019<\/td>\n		Vitaliy Valentynovych SHCHURKO<\/strong>
\n1971<\/td>\n		Kychenok Andriy Sergiyovych
\nKyiv<\/td>\n		Tuberculosis<\/td>\nlacking\/delayed drug therapy
\n30\/06\/2015 to
\n27\/08\/2017
\n2 years and
\n1 month and
\n29 days
\nlacking\/delayed drug therapy
\n01\/09\/2017 to
\n27\/11\/2018
\n1 year and
\n2 months and
\n27 days<\/td>\n		<\/td>\n7,500<\/td>\n250<\/td>\n<\/tr>\n
2.<\/td>\n3529\/21
\n15\/01\/2021<\/td>\n		Viktor Ivanovych OTRYSHKO<\/strong>
\n1956<\/td>\n		Zakharova Maryna Volodymyrivna
\nKryvyy Rig<\/td>\n		stroke<\/td>\nlack of\/delay in consultation by a specialist, lack of\/delay in medical examination, lacking\/delayed diet, lacking\/delayed drug therapy
\n31\/12\/2020 to
\n05\/01\/2021
\n6 days
\nlack of\/delay in medical examination, lacking\/delayed drug therapy, lacking\/delayed diet
\n11\/01\/2021 to
\n19\/01\/2021
\n9 days<\/td>\n		Art. 13 – lack of any effective remedy in domestic law in respect of inadequate medical treatment in detention.<\/td>\n7,500<\/td>\n250<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[i]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n

[ii]<\/a> Plus any tax that may be chargeable to the applicants.<\/p>\n