Strasbourg Court finds against Ukraine over lack of medical care for prisoner
In a case supported by the Kharkiv Human Rights Group’s Strategic Litigation Fund, the European Court of Human Rights has unanimously found that Ukraine violated an inmate’s rights through the substandard conditions in which he was held and lack of proper medical care, as well as through his initially unregistered detention.
Dmytro Kushnir was represented in Strasbourg by Lyudmila Mnushkina, a Kyiv lawyer. Kushnir who was born in 1963 was summoned to the police station on July 3, 2009, over the theft of a mobile phone. Kushnir was at the time at liberty pending another set of criminal proceedings against him and was immediately arrested on his arrival at the police station. He alleged that he was given no explanation and was subjected to a severe beating by the police. He was held in the police station overnight and questioned the next day as a suspect in the robbery. He was later remanded in custody.
In August 2009 the prosecuting authorities claimed a lack of evidence and refused to institute criminal proceedings into Kushnir’s allegations of ill-treatment when arrested. He was eventually convicted in March 2012 and sentenced to six years’ imprisonment. In October 2012 he was released from detention on the ground of his poor health.
Kushnir’s application concerned the period of his detention in SIZO. He alleged violation of Article 3 of the Convention in connection with inadequate conditions of detention and medical care for an inmate suffering from HIV and tuberculosis, as well as of Article 5 § 1 concerning his arrest on 3 July 2009 and detention until 4 July 2009. There were other allegations which the Court dismissed as too vague.
He had a number of serious health problems, such as HIV, as well as a history of tuberculosis and viral hepatitis, which he had told the authorities at the very beginning of his detention. The Court notes that his condition warranted special medical attention.
The Court found that the failure to administer antiretroviral therapy was reasonable as the authorities had undertaken sufficient measures to determine the severity of his immunodeficiency by means of a regular CD4 cell count.
It did not find the medical treatment provided with respect to his tuberculosis adequate and notes that it has seen evidence of poor medical assistance and protection against tuberculosis in Ukrainian detention facilities in a number of cases against Ukraine.
While Kushnir had contracted tuberculosis prior to the period of his detention under examination, he did suffer a recurrence of the disease while in custody. The Court was not convinced that his diagnoses were made in a correct and timely manner. The Court thus observes that initially the applicant had focal tuberculosis of the right lung only. Subsequently, he was found to have recovered from it. Later on, his left lung was found to have been affected too. Further on, the diagnosis again referred only to the right-lung post-tuberculosis changes. Then the applicant was found to be in good health. However, just a few months later he was diagnosed with infiltrative tuberculosis of the left lung. Finally, he was found to have suffered a recurrence of tuberculosis in both lungs. The Court also noted that although tuberculosis specialists examined the applicant on many occasions and prescribed treatment, there was no evidence that the treatment was in fact followed through. Nor was there any evidence that the applicant had been provided with the special diet that was needed to improve his health. It also appears that on at least four occasions the recommendation of the radiologist that the applicant be examined by a tuberculosis specialist remained unheeded
The Court also noted that, although the Ukrainian authorities admitted that the information in the applicant’s medical file about the treatment received for pneumonia triggered by tuberculosis was inaccurate, they failed to provide any factual details as to what treatment he had actually received (see paragraph 66 above).
The Court therefore found that Kushnir had not received adequate medical treatment for tuberculosis during his detention in the SIZO and that there had accordingly been a violation of Article 3 of the Convention. It found violation of the same Article over the physical conditions in the Kyiv SIZO, and a a violation of Article 5 § 1 of the Convention on account of the applicant’s arrest on 3 July 2009 and detention until 4 July 2009. Kushnir was arrested soon after 7 p.m. on July 3, and interrogated, but his arrest was only registered at 2 a.m. on July with this being a serious infringement of Article 5 since an unregistered detention totally negates the critically important guarantees enshrined in that Article.