FOURTH SECTION<\/p>\n
CASE OF CHUPRYNA v. UKRAINE
\n(Application no. 876\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n29 January 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Chupryna v. Ukraine,<\/p>\n
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n
Georges Ravarani, President,
\nMarko Bo\u0161njak,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having deliberated in private on 8 January 2019,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
PROCEDURE<\/p>\n
1.\u00a0\u00a0The case originated in an application (no. 876\/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Pavlo Volodymyrovych Chupryna (\u201cthe applicant\u201d), on 30 December 2015.<\/p>\n
2.\u00a0\u00a0The applicant was represented by Mr A.V. Leshchenko, a lawyer practising in Odessa. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0I.\u00a0Lishchyna of the Ministry of Justice.<\/p>\n
3.\u00a0\u00a0On 7 September 2016the Government were informed of the complaints under Articles 3 and 13 of the Convention concerning thealleged lack of access to adequate medical treatment in detention, the conditions of the applicant\u2019s detention in a disciplinary cell from October 2015 to January 2016 and the lack of effective domestic remedies in respect of the above complaints,and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.The application was granted priority under Rule 41 of the Rules of Court. The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n
THE FACTS<\/p>\n
THE CIRCUMSTANCES OF THE CASE<\/p>\n
4.\u00a0\u00a0The applicant was born in 1978. According to the most recently available information, at the time of the events in June 2016 the applicant was detained in Kirovograd pre-trial detention facility no. 14 (\u201cthe SIZO\u201d).<\/p>\n
5.\u00a0\u00a0In January 2013 the applicant started serving a sentence of ten years\u2019 imprisonment for murder. In February 2013 he was placed in Kirovograd prison no.\u00a06 (\u201cthe Prison\u201d).<\/p>\n
6.\u00a0\u00a0In April 2014 the applicant\u2019s health deteriorated. He complained of fever, abdominal pain and vomiting. Following his examination in Kirovograd Regional Hospital, theapplicant was diagnosed with chronic calculous cholecystitis (calculi within the gallbladder) and acute chronic gastroduodenitis.<\/p>\n
7.\u00a0\u00a0On 11 April 2014 the applicant complained of feeling unwell to the Prison medical unit. He was examined immediately and diagnosed withacute gastroduodenitis and chronic calculous cholecystitis. According to the case-file material, he was notprescribed medical treatment.<\/p>\n
8.\u00a0\u00a0On 22 August 2014 the applicant further complained to the Prison medical unit of feeling unwell. He was diagnosed with acute chronic gastroduodenitis and was prescribed dietary treatment for three days.<\/p>\n
9.\u00a0\u00a0On 6, 8 and 13 October and 5 November 2014, and 6 March 2015, in response tofurther complaints by the applicant, he was prescribed outpatient treatment. According to the Government, the outpatient treatment consisted of medicine,which was administered to the applicant in various combinations, notably, papaverine, co-trimixazole, azithromycin, and bromhexin.<\/p>\n
10.\u00a0\u00a0Following another such complaint, on 16 April 2015 the Prison doctor diagnosed the applicant with acute chronic gastroduodenitis and recommended that he be further examined at a specialist institution with a view to deciding whether he required surgery. The parties did not inform the Court whether the applicant had undergone the recommended examination.<\/p>\n
11.\u00a0\u00a0From 2 to 29 May and from 3 to 11 June 2015 the applicant underwent inpatient treatment foracute chronic gastroduodenitis in the Prison medical unit.According to the Government, he was administered the prescribed medication and his state of health improved.<\/p>\n
12.\u00a0\u00a0On 10 July 2015 he was examined by a general practitioner of Kirovograd City Hospital, who confirmed the earlier diagnoses and recommended inpatient treatment and dietary treatment.<\/p>\n
13.\u00a0\u00a0From 28 July to 10 September 2015 the applicant underwent inpatient treatment for calculus cholecystitis in unstable remissionat the hospital in Bucha prison no. 85. The applicant alleged that the treatment which he had received there had beeninadequate and had led to an aggravation of his condition. He also alleged that surgery for his calculus cholecystitis had been scheduled but had not been performed owing to lack of funds.<\/p>\n
14.\u00a0\u00a0On 21 September 2015 he was transferred back to the Prison. In the meantime he had been detained in the Kyiv SIZO and the Odessa SIZO. During his detention from 14 to 21 September 2015, he complained to the SIZOs\u2019 administration of abdominal pain and vomiting, but allegedly to no avail.<\/p>\n
15.\u00a0\u00a0On 8 October 2015 the applicant was placed in adisciplinary cell in the Prison for three months as a penalty for consumption of alcohol. According to the applicant, the conditions of his detention there were very poor:he suffered from lack of fresh air, low temperatures, unsanitary conditions and high humidity. Furthermore, he allegedly had no mattress to sleep on.<\/p>\n
16.\u00a0\u00a0According to the Government, on 8 October 2015 the Prison governor issued a decision on the applicant\u2019 placement in a disciplinary cell for consumption of alcohol. On 30 December 2015 he was early released from the disciplinary cell.<\/p>\n
17.\u00a0\u00a0On 12 October 2015 the applicant\u2019s lawyer complained to the Kirovograd regional prosecutor\u2019s office that the applicant was not receiving the requisite medical care in detention. He submitted, in particular, that the surgery which the applicant required had been postponed owing to the lack of funds.<\/p>\n
18.\u00a0\u00a0On 23 October 2015 the Prison doctor examined the applicant once again and diagnosed him with chronic calculous cholecystitis in unstable remission. He prescribed the applicant medication and recommended elective surgery.<\/p>\n
19.\u00a0\u00a0On 9 November 2015 the prison service of Kirovograd Region sent a request for the applicant\u2019s placement in the hospital in Bucha prison no. 85. On 9 December 2015 this request was refused owing to the lack of available places in the hospital.<\/p>\n
20.\u00a0\u00a0On 11 December 2015 and 16 January 2016 the prison service again requested the applicant\u2019s placement in the hospital at correctional colony no. 4 of Dnipropetrovsk Region. On 27 January 2016 the prison service took a decision on the applicant\u2019s transfer to the hospital for the required surgery.<\/p>\n
21.\u00a0\u00a0On 12 February 2016 the applicant informed the Prison governorthat he had refused the treatment offered to him in the hospitals within the Dnipropetrovsk and Kharkiv SIZOs because of lack of trustin the doctors of those facilities. On the same day the applicant gave his consent to receive treatment at any other medical institution.<\/p>\n
22.\u00a0\u00a0On 22 April 2016 following deterioration of his health, the applicant was transferred by ambulance to Kirovograd Regional Hospital, where he was examined by a surgeon and diagnosed with calculous cholecystitis, chronic pancreatitis and \u201cdiffusive changes\u201d of the liver (\u0434\u0438\u0444\u0443\u0437\u043d\u0456 \u0437\u043c\u0456\u043d\u0438 \u043f\u0435\u0447\u0456\u043d\u043a\u0438).<\/p>\n
23.\u00a0\u00a0According to the Government, as of November 2016 the applicant\u2019s state of health was satisfactory. The Government did not provide documentary evidence in respect of that statement.<\/p>\n
THE LAW<\/p>\n
I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n
24.\u00a0\u00a0The applicant complained that the conditions of his detention in a disciplinary cell from 7 October to 30 December 2015 had been inadequate and that he had not received adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads as follows:<\/p>\n
\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n
A.\u00a0\u00a0Admissibility<\/p>\n
25.\u00a0\u00a0The Government claimed that the applicant had failed to exhaust domestic remedies in respect of his complaint concerning the conditions of his detention in a disciplinary cell from 7 October to 30 December 2015, as he had not complained to a prosecutor. In the Government\u2019s view, such an action could have been effective and had constituted an accessible remedy in the applicant\u2019s situation.<\/p>\n
26.\u00a0\u00a0The applicant did not comment on the Government\u2019s objection.<\/p>\n
27.\u00a0\u00a0The Courtdoes not find it necessary to deal with the Government\u2019s objection as to the exhaustion of domestic remedies, as it considers that this part of the application is inadmissible in any case for the following reasons.<\/p>\n
28.\u00a0\u00a0The Court reiterates that, although in cases concerning the material conditions of an applicant\u2019s detention it has not always required that an applicant support each and every allegation with documentary evidence, recognising that relevant information and the possibility of investigating the facts in such cases lie primarily in the hands of the authorities, in order for it to reverse the burden of proof and examine the merits of the complaints, they must at least have been clearly and consistently formulated (see, for instance, Ukhan v.\u00a0Ukraine, no. 30628\/02, \u00a7 64, 18 December 2008).<\/p>\n
29.\u00a0\u00a0The Court observes thatin contrast to quite detailed complaints of lack of medical treatment, most of the applicant\u2019s submissions concerning this part of the application were limited to vague and general statements. They concerned alleged lack of fresh air, low temperatures, unsanitary conditions, high humidity, and lack of mattress to sleep on. The applicant did not provide any details or substantiation. He also failed to specify what the nature, extent and duration of the suffering caused by the impugned restrictions had been and to demonstrate that his suffering had reached the threshold of severity bringing the matter within the ambit of Article 3 of the Convention. The applicant failed to comment on the Government\u2019s objection and possibly develop his arguments by providing more details in respect of the present complaint. Lastly, the Court cannot but observe that in his complaint to the Kirovograd regional prosecutor\u2019s office of 12 October 2015 concerning the lack of medical care in detention the applicant\u2019s lawyer did not mention that the conditions of the applicant\u2019s detention in a disciplinary cell had been inadequate (see\u00a0paragraph 17 above).<\/p>\n
30.\u00a0\u00a0On the whole, the Court finds that the above matters, as raised by the applicant in this part of the application, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.<\/p>\n
31.\u00a0\u00a0It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
32.\u00a0\u00a0The complaint about the lack of adequate medical treatment in detention is on the contrary not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. Noting also that it is not inadmissible on any other grounds, the Court declares it admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/p>\n
33.\u00a0\u00a0The Government submitted that the applicant\u2019s health when in penal institutions had been under close medical supervision and that he had been provided with proper and adequate medical care within both penal institutions and civilian hospitals. They further stressed that the delays in providing the applicant with medical treatment had been due to his refusal to be transferred to the hospital on 12 February 2016.<\/p>\n
34.\u00a0\u00a0The Court has emphasised on a number of occasions that a lack of appropriate medical care in detention may amount to treatment contrary to Article 3 of the Convention (see, among many other authorities, Hummatov v.\u00a0Azerbaijan, nos. 9852\/03 and 13413\/04, \u00a7\u00a7\u00a0112\u201122, 29 November 2007; Ukhan, cited above, \u00a7\u00a7\u00a077\u201183; and Petukhov v. Ukraine, no.\u00a043374\/02, \u00a7\u00a7\u00a091\u201198, 21 October 2010).<\/p>\n
35.\u00a0\u00a0Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention and in respect of medical treatment in detention are summarised in the case of Sergey Antonovv. Ukraine (no.\u00a040512\/13, \u00a7\u00a7\u00a070\u201175, 22 October 2015).<\/p>\n
36.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see\u00a0paragraph 6 above) was serious enough to affect his everyday functioning. Therefore he could have experienced considerable anxiety as to whether the medical care provided to him was adequate.<\/p>\n
37.\u00a0\u00a0The Court notes that it took the authorities four months to prescribe the applicant dietary treatment (see paragraph 8 above). It then took them another month and a half toprescribe him outpatient treatment consisting of medicine (see paragraph 9 above).<\/p>\n
38.\u00a0\u00a0In the light of the above, the Court considers that the applicant\u2019s medical condition did not receive an adequate and timely response from the domestic authorities for more than five months. It does not appear from the available material that a reasonable effort was made to deal with the said condition during that time.<\/p>\n
39.\u00a0\u00a0The Court further observes that in October 2015 he was recommended elective surgery for his chronic calculous cholecystitis (see\u00a0paragraph 18 above). However,apparently the surgery was not performed while the Government has not provided any explanation for that failure.Similarly, the Government did not provide any explanation concerning the failure to carry out the applicant\u2019s examination in connection with chronic gastroduodenitis (see paragraph 10 above).<\/p>\n
40.\u00a0\u00a0The Court if mindful of the fact thatthe prison service requested the applicant\u2019s hospitalisation for thesurgery in November 2015, and that it was refused in December 2015 owing to the lack of available places in a hospital (see paragraph 19 above). It is also true that in February 2016 the prison service attempted again to arrange the applicant\u2019s placement in the SIZOs\u2019 hospitals, which he refused. This refusal, however, was followed by the applicant\u2019s consent, given on the same day,to placement in any other medical institution for surgery (see\u00a0paragraph 21 above).It appears from the Government\u2019s submissions that no further attempts to arrange the surgery have been taken.<\/p>\n
41.\u00a0\u00a0The Court further notes that in April 2016 the applicant\u2019s state of health again deteriorated (see paragraph 22 above). It remains, however, unknown what actions, if any,were taken by the authorities in response.<\/p>\n
42.\u00a0\u00a0In the light of the foregoing, the Court considers that the authorities\u2019 unjustified delays in providing the applicant with medical treatment as soon as his medical condition wasestablished, their failure to securehis placementin a hospital for surgeryand the subsequent deterioration of his health are sufficient indications of a serious failing on the part of the respondent State to provide him with the appropriate medical care while in detention, which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.<\/p>\n
II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n
43.\u00a0\u00a0The applicant complained that he had not had at his disposal an effective domestic remedy for his complaints in respect of alleged inadequate medical treatment under Article 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows:<\/p>\n
\u201cEveryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n
A.\u00a0\u00a0Admissibility<\/p>\n
44.\u00a0\u00a0The Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/p>\n
45.\u00a0\u00a0The Government submitted, without providing further comment, that the applicant had had an effective domestic remedy in respect of alleged inadequate medical treatment.<\/p>\n
46.\u00a0\u00a0The Court reiterates that it has already found a violation of Article\u00a013 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning the lack of medical treatment (see, among other authorities, Sergey Antonov, cited above, \u00a7 96, with further references). It sees no reason to decide otherwise in the present case.<\/p>\n
47.\u00a0\u00a0The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant\u2019s complaint under Article 3 of the Convention.<\/p>\n
III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n
48.\u00a0\u00a0Article 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
49.\u00a0\u00a0The applicant did not submit claims for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.<\/p>\n
FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/p>\n
1.\u00a0\u00a0Declares the complaint under Article 3 of the Convention concerning the alleged lack of access to adequate medical treatment in detention and the complaint under article 13 concerning the lack of effective domestic remedies in respect of this complaint admissible;<\/p>\n
2.\u00a0\u00a0Declaresthe remainder of the application inadmissible;<\/p>\n
3.\u00a0\u00a0Holdsthat there has been a violation of Article 3 of the Convention;<\/p>\n
4.\u00a0\u00a0Holdsthat there has been a violation of Article 13 of the Convention.<\/p>\n
Done in English, and notified in writing on 29 January 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n
Andrea Tamietti\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\u00a0 Georges Ravarani
\nDeputy 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n