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Prisoners’ rights to health protection and medical care in 2014-2021: KHPG report

18.06.2021
Tamila Bespala, Hanna Ovdienko, Maksym Reviakin, Gennadiy Nokarev and Yevgeniy Zakharov

Each State Party to the UN Convention against Torture is required to submit periodic reports on the implementation of the Convention to the UN Committee against Torture and Ill-Treatment (hereinafter – the Committee). The previous, Sixth Report of Ukraine, was considered by the Committee in November 2014.

In early 2017, the Committee provided a list of 42 issues completely covering the problems of torture and ill-treatment to the Government of Ukraine. In November 2018 the Government had prepared a draft of the Seventh Periodic Report (hereinafter – the Report). The draft is posted on the website of the Ministry of Justice of Ukraine[1].

The report of the Kharkiv Human Rights Group, which is offered to the reader’s attention, answers several questions of the Committee and is part of our commentary on the Seventh Periodic Report of the State.

Reform of the medical system in penitentiary institutions

Provision of healthcare to convicts is one of the most urgent problems in the penal system. During the monitoring visits to PIs (see comment to question 27), we were able to find out the actual state of penitentiary healthcare, and our findings differ greatly from the information provided by the Government.

In September 2016, KHPG visited an interregional hospital that services the Buchaniv PI no. 85 in Kyiv Region and found a number of violations there, such as serious violations of sanitary requirements, poor nutrition for sick convicts, virtual lack of walks in the open for them, especially for those unable to move around on their own, poor organization of medical care, and most importantly, lack of proper medical treatment, or even medical protocols established by the MoH. Thus, it is the convicts, not medical personnel, that administer medical injections and even intravenous therapy to each other. In one particular case, a convict with obvious signs of a mental disorder had been kept with other convicts and died shortly after our visit. We sent a petition to the MoJ regarding these violations, yet the Ministry essentially chose to ignore it, deeming the above shortcomings to be minor, and refused to conduct a formal inquiry into the matter[2].

Following the reform of penitentiary healthcare in July 2018, our monitors once again visited this hospital, which had been renamed Multidisciplinary Hospital of the SIHC, and found the same problems, only compounded by a catastrophic shortage of doctors and medicines[3].

The penitentiary healthcare reform mentioned by the Government has actually made the situation worse for convicts. There are, of course, objective reasons for this, such as insufficient funding for penitentiary healthcare (50%), medical units requiring renovation (and no funding for it), lack of equipment (only 30% provided), with 70% of what’s available being outdated. However, this is not the main problem. Most medical units in PIs, multidisciplinary as well as specialized hospitals of the SIHC, lack specialists. The shortage of medical staff in PIs is not a new problem, yet it remains very urgent to this day. According to the SIHC, as of late September 2018, the shortage of personnel amounted to about one-third, 40% of them doctors. In some institutions, the situation was critical[4]: some of them have only the heads of medical units; at the medical unit of the Dnipro PTDC (no. 4), there was only one paramedic to service 1,700-1,800 convicts, which makes it impossible to even visit the convicts to check up on their health, let alone treat them all. According to the SIHC, as of May 2019, Ukrainian PIs had a staffing list of 2,559, of which 885.25 were doctors. Vacancies constituted 832.25 staff units, with 336.25 of those being for doctors[5]. Currently, according to HC, staffing is around 90%, although in some institutions its lack is significant.

According to the report of the Ombudsman for 2019, for the second year in a row the level of ensuring the right of individuals to health care and medical assistance remained low in most of the places of non-liberty[6]. Due to that situation in the prison health care and increase of mortality among the prisoners, the Prosecutor General, Ruslan Ryaboshapka, numerously addressed the Prime Minister of Ukraine, Oleksiy Gonsharuk, for the urgent intervention in the situation with delaying the reform of criminal executive medicine[7].

Only since April 2019 HC began implementing to obtain the licenses for each branch (medical unit and medical institutions that are part of its structure) separately according to the Licensing conditions to conduct economic activity in medical practice. As of 01 January 2020 19 branches of SI “Health Centre of the State Criminal-Executive Service of Ukraine” obtained rights to conduct economic activity in medical practice, except the branches in Dnipropetrovsk and Donetsk oblasts.

But in 2021 the multidisciplinary hospital at Dnipro PC (No.4) has not performed any surgery[8].

Of course, the removal of medical workers from the list of law enforcement officers at their respective institutions, as well as the fact that they are no longer subordinate to administrations of PIs are positive steps, but in many cases this "independence" is imaginary. SCES healthcare institutions are located on the premises of their respective PIs and are thus required to obey the administrations’ rules regarding the regime, monitoring of convicts and security; the heads of these healthcare institutions must be present at meetings held by PI wardens; they must submit requests to the administrations in order to transfer convicts to civilian hospitals or to use vehicles for this, etc. For these reasons, the Government’s claims of independence in decision-making concerning the treatment of convicts (see para. 200 of the Report) are an exaggeration.

SIHC’s activities was extremely opaque. The web site of the HC was created under the pressure from the public. There are also no lists of regional healthcare facilities that provide medical assistance to convicts. Even now the statistics of the infection is only provided in the summarized form for Ukraine in general.

After penitentiary healthcare had been made the responsibility of an independent state agency, the heads of PTDCs and PCs assumed that they were no longer responsible for the life and health of convicts, although no such changes had been made to legislation, nor could they have been made. In practice, this attitude has resulted in situations when PC or PTDC administrations refuse to consider petitions, complaints and requests for medical assistance submitted by convicts, their families and lawyers. SCES healthcare facilities at PIs do not have their own communication channels, so all communication goes through the management of the appropriate SIHC branch, which significantly complicates and delays the provision of medical care to sick convicts.

The International Expert of the Joint Project of EU and the Council of Europe "European Union and the Council of Europe work together to support the prison reform in Ukraine”, Jorg Pont, provided the following recommendations for the improvement of cooperation between HC of SCES and SCES, in particular, the following:

– provide the unrestricted access of not only the medical workers to the convicts/detainees, but also vice versa;

– make a clear division of competencies of medical staff of HC and the employees of SCES, so that each one would only perform their own functions;

– ensure the preservation of medical secrecy regarding the state of health of convicts, including during their medical examinations and storage of medical records;

– arrange the timely (if needed, urgent) transporting of the convicts to the civil hospitals and their stay there;

– introduce the obligation of heads of institutions to consider doctors` opinions on healthy living conditions of convicts, similar to Articles 45.1, 45.2 of the European Prison Rules;

– develop codes of professional ethics for medical workers and staff of SCES;[9]

– develop the standard working procedures and training procedures for both categories of employees;

– resolve the issue of recording complaints about the use of violence;

– introduce a mechanism for reviewing the complaints of convicts about medical care[10].

General issues in multidisciplinary hospitals and medical units

Nowadays the following issues remain unresolved: an adequate level of examination of prisoners for tuberculosis and provision of medical assistance to people with various forms of tuberculosis; continuous treatment with antimycobacterial therapy for prisoners suffering from a contagious form of tuberculosis; continuous treatment with highly active antiretroviral therapy for HIV-positive prisoners; hiding the facts of the convicts or detainees receiving bodily injuries during their stay in the institutions; adequate provision of the medical units with necessary equipment and medicines; failure to conduct or formal medical examinations of prisoners during the release from the disciplinary premises or the use of special means to them; the absence of organization of medical provision of the prisoners during their staging (the transfer of the prisoners with contagious diseases (tuberculosis), is carried out in the general staging procedure, without providing the necessary isolation and personal protective equipment, which contributes to the increase of epidemiological situation related to tuberculosis)[11].

After the introduction of legislative authorization for substitution maintenance therapy (SMT) in PI in January 2021 such therapy was only provided in two institutions, it was received by 53 convicts[12], constituting a small percentage of the total need for SMT.

Even with all these objective factors, the main problem still lies in the attitude of prison doctors toward the health of convicts. Based on our monitoring visits, low quality of healthcare, or even its absence in some places, are the main things that the convicts complain about in almost every PI. Patients have to wait for weeks to be examined by a doctor, let alone for their treatment; moreover, they are told to buy medicines at their own expense – those needed for medical operations as well as those for general use[13]. Convicts are often forced to put bandages on themselves[14]. Our monitoring shows that a year and a half after the launch of the penitentiary healthcare reform the state of healthcare in prisons is catastrophic, and in some institutions healthcare is simply non-existent. The provision of medical care to convicts suffering from serious illnesses is also poor. Thus, no help was provided to a patient with hepatitis C (Dnipro PI no. 4), cancer patient (Dnipro PI no. 4), tuberculosis patient (Chernihiv PTDC)[15]. Some SCES healthcare institutions still have no medical license, so there is no guarantee that their activities meet licensing standards (Lviv PI no. 19). A similar situation can be observed at the Zakarpatska PI no. 9, Chortkiv PI no. 26, Kropyvnytskyi PTDC, Pyatykhatska PI no. 122 and other institutions)[16].

In February 2019, during the visit of our monitors to the Zhovtovodsk PI no. 26 in Dnipropetrovsk Region, it was discovered that the medical unit there lacked the most essential medicines; one of the convicts complained that they did not even have bandages. Diabetes patients there are not receiving insulin and convicts with fractured bones get no splints. Although the PC has a medical laboratory specialist, the laboratory itself has neither the reagents nor the equipment for on-site tests. In order to examine a convict, specialized examinations or dental care included, they must be taken outside the colony, but this is only done for those who can afford the cost of gasoline. There has been no fluorography specialist for over a year at the colony, so the convicts have not been undergoing fluorography, while it was later discovered that a person released from the institution had an open form of tuberculosis[17]. According to the institution’s therapist, not all medicines are provided free of charge under state programs. As a result, those convicts who can afford their own medication are prescribed more expensive drugs, which are not available at the medical unit, while those who can’t are treated with whatever is available[18].

In August 2019, our monitors visited the Dnipro Multidisciplinary Hospital no. 4 located on the premises of the Dnipro PI no. 4. During the visit, we discovered that no treatment was being provided to sick convicts, including those who had survived myocardial infarction. According to the doctors, they do not even have enough basic medicines, let alone specialized ones. If a convict has relatives, they are often the ones to buy the medicines. The institution’s doctors do not monitor their patients’ health, they do not perform daily rounds and do not even visit convicts when called. It is a difficult task for the convict to get examined by a doctor, the logs of preliminary registration for outpatient care are not available to the prisoners and their complaints to the administration are useless. If a convict requires additional tests that cannot be performed at the institution, this is either not done at all or done after a considerable delay. One of the patients who had been brought a long way to be treated there was forced to forgo treatment under threat of physical violence. According to the convicts, this way the hospital makes room for those who pay for their stay and remain there for months even when they have no need for treatment[19]. According to a lawyer who provides legal assistance to two seriously ill convicts held at this facility, both of these convicts are kept in regular cells and are not getting any medical help. One of the inmates, disabled since childhood, had his spleen removed as a child and suffers from hepatitis C as well as liver cirrhosis; 1.80 m tall, he cannot eat and weighs 50-55 kg. In spite of this, he is still unable to get a place at the prison hospital. Another inmate, with a temporary orthopedic plate inside his tibia, has developed a purulent process that could result in abscess and loss of limb or even death. Our organization has appealed to the MoJ, PG and the Ombudsman regarding this, but to no avail.

Complaints lodged with investigating judges under Article 206 CPC by persons held in pre-trial detention facilities that are not being provided with medical care despite requiring it, are not particularly effective either, since prison doctors and administrations in the vast majority of cases fail to comply with court orders requiring them to provide such care, or, at the very least, delay its provision indefinitely.

In para. 204 of the Report, the Government mentions that Article 116 CPC allows convicts to receive medical advice and treatment at civilian healthcare facilities, which is in line with every person’s right to choose their doctor. At the same time, receiving medical services in civilian healthcare institutions, except for specific ones determined for each Ukrainian region, is only done at the expense of the convicts themselves or their relatives. Given the extreme shortage of medical personnel and, what’s even more important, medical equipment, as well as the poor selection of medicines, the need for treatment outside SCES institutions or for "civilian" medical examinations arises quite often, since the penitentiary healthcare system is often incapable of carrying out examinations and treatment of inmates. Thus, this approach to treatment is discriminatory toward low-income convicts who cannot afford paid medical services. Moreover, given the limited capacity of Ukrainian penitentiary healthcare to provide treatment to convicts, depriving them of an opportunity to receive treatment in civilian hospitals in many cases means depriving them of their only chance to survive. Only a small number of inmates, such as VIPs like the former Prime Minister of Ukraine Yulia Tymoshenko (ECtHR judgement of 30/04/2013)[20] or famous businessman and leader of the political party “UKROP” G. Korban (ECtHR judgement of 04/07/2019)[21] can take advantage of these opportunities.

In paras. 204, 205 of the Report, the Government claims that PI medical units are provided with medicines for the treatment of convicts suffering from tuberculosis and HIV/AIDS. However, we are regularly contacted by convicts and their families who complain about poor medical treatment for HIV-positive inmates. In some cases, no treatment is provided at all, or it is inappropriate for the patient’s HIV type, or the ART therapy conflicts with anti-tuberculosis therapy, which forces patients to stop taking ART medication. Some convicts have a CD4 cell count of 50-100 or even lower than 20. Given below is the information from the reports we have received in 2019 regarding the absence of treatment for HIV-positive convicts.

At the Kamyansk PI no. 101, the administration failed to comply with a court order to conduct a medical examination of a patient with IV clinical stage HIV in order to determine his CD4 cell count. At the Oleksiyivska PI no. 25, a convict with IV clinical stage HIV was forced to perform manual labour and was not provided with any treatment, which made him contact us for legal aid. At the Dnipro Multidisciplinary Hospital no. 4, a convict was discovered who has IV clinical stage HIV as well as hepatitis B and C and is not getting the treatment he needs[22].

In 2020 the National Preventive Mechanism detected the facts of interruption of treatment with substitution maintenance therapy for the convicts, namely, during the monitoring visits to Vinnitsia PI No. 1, Dnipropetrovsk PI No. 4 etc, it found out that the prisoners are not brought from the institutions to health care institutions to obtain the substitution maintenance therapy, because of that the treatment is interrupted. Such persons are only detoxified in the institution[23].

Also concerning is a low level of diagnosing of the infectious diseases. In particular, in Zhovtovodsk PC No. 26 the fluorography to diagnose pulmonary tuberculosis is not performed for over a year already. This can lead to an epidemic of the disease among the convicts. No pre-trial detention center or PI with the function of pre-trial detention center can provide the full isolation of persons with active form of tuberculosis. In some institutions the medical unit has not receive license for the medical practice, and therefore does not have guarantees that it meets licensing standards on technical and qualification grounds (Lviv PI No. 19). The similar situation is in Zakarpatska PI No. 9, Chortkiv PI No. 26, Kropyvnytskiy pre-trial detention center, Pyatykhatka PC No. 122 and other institutions)[24].

Due to the lack of permission to carry out activities in the field of nuclear energy, the work with ionizing radiation sources was suspended, namely X-ray rooms in all medical institutions of the State Institution “Health Centre of the State Penitentiary Service of Ukraine”, it affected the quality of medical assistance in pre-trial detention centres (for example, SI “Kyiv SIZO” that holds around 2 000 persons, and others), penitentiary institutions, and, in particular, the specialized tuberculosis hospitals (Holapristanska, Kherson, Snigurivska, Dnipropetrovsk, Zbarazka and others) and non-compliance with infection control in penitentiary and medical institutions.

The anti-epidemic and prophylactic measures in the institutions require additional attention by the medical institutions of SI SCES of Ukraine. Many institutions lack the commissions for the infection control of tuberculosis, the sputum collection takes place in unsuitable premises, due to the lack of such collection points, there are no infection isolator wards. The organization of medical supervision over the HIV-infected also required attention. Thus, the institutions did not have the designated medical workers responsible for the measures to counteract the HIV/AIDS. Dispensary surveillance cards for HIV-infected persons were not maintained. As a result, there is an increased risk of TB infection for other persons. The above-mentioned was detected in Izyaslav PC No.31, Petrivka PC No. 49, Zhovtovodsk PC No. 26, Cherkasy PC No. 62, Kherson SIZO, Kyiv SIZO, Kryvyi Rih PC No. 80 etc.

Due to the lack of the special stationary vehicles, designed for staging the patients to the specialized tuberculosis hospitals for the examination, diagnosis or exclusion of diagnosis, the people with diagnosed tuberculosis are staged without taking into account the resistance profile and in some cases with other prisoners who do not suffer from this disease, which does not meet the requirements of infection control for tuberculosis.

In early 2018, there was a measles outbreak in Ukraine that also reached PIs, particularly the Vilnianska PI no. 11, Khmelnytskyi PTDC and Dnipro PI no. 4. Despite this, no measures were taken to prevent its spread among inmates (such as vaccinations or tests to determine immunity levels), and the very fact of the outbreak had been denied by the SCES for a long time. Due to the risk of an epidemic and given the PIs’ low capacity to deliver a proper diagnosis, as well as poor detention conditions and nutrition there, our organization in March 2019 appealed to the MoJ and the Ombudsman to take action to prevent a measles epidemic. In May 2019, a group of convicts got infected at the Starobabanivska PI no. 92 in Cherkasy Region. However, the Main Interregional Directorate of the SCES replied to our petition sent on Facebook with a joke: "... thing is, people do tend to get sick sometimes"[25].

Specific cases of inadequate treatment of prisoners

Given below are specific cases of poor healthcare in PIs over the 2014-2021 period, which illustrates the general state of penitentiary healthcare in Ukraine.

1. A woman, sentenced for selling drugs, who suffers from IV clinical stage HIV and cancer, was not provided with timely cancer treatment in 2014-2015 at the Zbarazh Correctional Colony no. 63 in Ternopil Region or at the penitentiary service hospitals. In addition, according to the ECtHR, Ukraine failed to comply with the Court-ordered interim measures, namely to carry out an immediate examination of the woman and provide the required treatment[26].

2. A man with viral hepatitis C, held at the Kirovograd PTDC no. 14 for selling drugs, was not provided with proper systematic medical supervision or a treatment plan for his hepatitis. In this case, Ukraine also failed to comply with the ECtHR’s order to provide treatment to the patient[27].

3. A man, sentenced to 14 years in prison for premeditated murder, developed Buerger’s disease while serving his sentence, which resulted in eventual amputation of two lower and two upper extremities. In addition, the convict was suffering from hypertension, coronary heart disease and other conditions, as well as had survived a heart attack. Naturally, he could not take care of himself, while his transportation to and from the hospital, given his inability to sit on his own, was done in a way that not only constitutes inhuman and degrading treatment, but is also shocking in its cruelty – he was tied to a toilet. Since June 2015, for two years, the courts had been unwilling to release the convict on the grounds of a serious illness, although doctors warned that his treatment could not be effective in prison and that further detention could kill him. Finally, after an application for interim measures had been submitted to the ECtHR requesting to provide proper treatment and care for the convict, a district court ordered his release in July 2017. The man died three weeks later.

4. A 53-year-old man had been held at the Chernihiv PTDC since July 2016. In September 2016 he had a myocardial infarction and was diagnosed with a number of cardiovascular conditions, including class II heart failure. In February 2017, doctors at a civilian hospital found that the man’s health was at risk and that he had to take a cardiac ventriculography test, which had to be done in Kyiv and cost 4,000 UAH. Over the course of his detention, an ambulance had to be called for him 12 times, including, in April 2017, during a court hearing, after which the man’s lawyer sent an application for interim measures to the ECtHR with a request to force the Government to provide proper medical treatment to his client. The ECtHR had to repeat its instruction after the Government had ignored the first one. In October 2017, the restraining measure for the applicant was changed and he was able to take the necessary tests in Kyiv[28].

5. In 2017, a woman with two children, a 1.5-month-old and a 5-year-old, was arrested at her home by the police on suspicion of fraud, taken away from her children and brought straight to the investigating judge, who chose detention as her pre-trial restraining measure. The woman has a history of mental problems and after several months at the Zhytomyr PTDC she was diagnosed with a psychiatric disorder that was progressing rapidly. The lawyer’s request for the court to change the restraining measure was denied. As a result, the patient’s condition became so severe that she became incapable of communication, displayed aggressive behaviour and lost all self-control. She was transferred to a psychiatric hospital for inpatient treatment; on her way there, she was brutally beaten by escorting officers for disobeying commands. After her restraining measure had expired, the woman was discharged from the hospital, but she still has not fully recovered and periodically undergoes inpatient treatment in a psychiatric hospital.

6. A man with stage IV HIV as well as urolithiasis has been serving his sentence since March 2017 at the Sofia PI no. 45 in Dnipropetrovsk Region. Experiencing terrible pain and unable to move, he was recommended immediate surgery by doctors. In summer 2018, the patient was taken to a multidisciplinary hospital but was not operated on, which by November 2018 made his condition life-threatening. The lawyer filed an application for interim measures with the ECtHR. After the ECtHR ordered the Government to provide the necessary treatment to the patient in accordance with medical recommendations, the man finally underwent surgery.

7. In the summer of 2017, a 19-year-old girl, HIV-positive since childbirth and disabled since childhood, who also suffers from tuberculosis of peripheral lymph nodes, was placed in a PTDC on the orders of the investigating judge. On admission to the PTDC she underwent a tomography scan, which revealed lymphadenopathy (enlarged lymph nodes), which required further examination in a hospital, including a biopsy. Nothing of the sort was done though and the girl had been treated for pulmonary tuberculosis over the course of six months, even though she had tested negative for it. Finally, the required examination at an oncology clinic in January 2018 revealed a lymphoma, which had already progressed to stage II-B. However, even after the cancer diagnosis, she had been deprived of treatment for three more months, among other things, because of lack of means to take her to the oncology clinic. When the girl started chemotherapy at the end of April 2018, instead of the four drugs that she had been prescribed by doctors she was given only one. In August 2018, she underwent therapy involving two drugs. From September 2018 to January 2019, the treatment was once again halted, among other things, due to signs of toxic hepatitis in the patient after chemotherapy sessions, as she was not provided in time with hepatoprotection drugs and other medicines at the PTDC required for post-chemotherapy recovery[29].

8. A 27 year old man serving his sentence at the Starobabanivska PI no. 92 in Cherkasy Region was diagnosed with nodular goitre class III-IV in September 2018 at a multidisciplinary hospital located on the premises of the Lviv PI no. 19, and was recommended immediate surgery. The tumour was impeding his breathing, he felt constant dizziness and a burning sensation in the heart area, yet he was brought back to the penal colony instead of undergoing the operation there and then. He was told to undergo additional examinations at civilian healthcare facilities at his own expense before surgery. In the end, the convict’s mother found a civilian hospital that removed the tumour in January 2019.

9. A person accused of thefts was held in Odesa SIZO for two and a half years. In June 2020 he lost the possibility to move due to paralysis of unknown etiology, however, he was not transferred to the medical unit, and instead was left in the general cell. Accordingly, his cellmates took care of him. The court did not change his preventive measure, the patient was brought to the court hearings on a stretcher, and during court hearings he constantly lies on the dock. Despite the numerous complaints of the lawyers to all possible instances, the necessary medical examinations did not took place.

11. The convict is serving his sentence in Odesa PC No. 14. He has a number of diseases, including stage 4 HIV with concomitant chronic infectious diseases. The medical commission refused to conduct a medical-consultative assessment of his condition, and the lawyer asked the court to release the convict due to illness and oblige the colony administration to hold a commission, but the court refused to open proceedings. Following the lawyer’s appeal, the local court’s decision was quashed and the case remanded. None of the scheduled meetings have taken place for more than eight months.

12. The convict is serving her sentence in Kamyanka PC No.34, she suffers from diseases of the female genital organs, which in 2018-2019 were accompanied by constant pain and bleeding. The treatment in prison hospitals did not help, and in spring of 2021 her condition worsened. However, there were no examinations aimed at establishing the diagnosis and possible treatment regime, despite repeated appeals to the relevant authorities, but she was offered to pay for it. The lawyer’s request to have the patient examined and treated was denied, relying on the assurances of prison doctors about the adequacy of the patient’s treatment, and the appellate court upheld the decision.

13. The convict, who is serving his sentence in Vinnytsia PC № 86, had a stroke in 2019, which led to paralysis of part of his body and loss of ability to move. The lawyer prepared a petition to the court to release the convict due to illness, but under pressure from the administration of the institution, he refused the lawyer, as it seemed that the administration would do it itself. In November 2020, it became clear that the patient had not been released, he was lying, chained to a bed, and he was forbidden to communicate with the outside world.. The lawyer filed a lawsuit to release the convict due to illness, after which he was taken to various prison hospitals several times, allegedly for examination, but even after receiving the opinion of the medical advisory commission, no court hearings have been held for more than six months. It happened once as a result of an injury of the patient when he fell on the stairs between the floors from a sheet on which he was carried to the colony premises to participate in a court hearing by videoconference.

14. The convict who in spring of 2021 was suspected of lung cancer is serving his sentence in Kharkiv PC No.43. The lawyer appealed to the court to ensure the examination and treatment of the patient, but the court refused, without even notifying the lawyer of the scheduled meeting and the decision. After that, the patient was taken to a civilian hospital, where a computer tomography scan was performed, but he was not informed about the results of the examination.

With healthcare like this, the quality of medical records cannot be much better. Indeed, when no medical care is provided at all, such records (falsified) only appear in patients’ medical records when legal proceedings are initiated concerning the negligence of prison doctors, such as proceedings at the ECtHR. Thus, the poor quality of medical records was mentioned in ECtHR judgements in the cases Sergiy Smirnov v. Ukraine[30] and Beketov v. Ukraine[31].

Reaction of the penitentiary system of Ukraine to the COVID-19 pandemic

In 2020 the world was hit by coronavirus pandemic (COVID-19). In March 2020, the Joint Order of the Ministry of Justice, State Institution of HC “On approval of the Plan of anti-epidemic actions to prevent the introduction and spread of acute respiratory disease caused by the new coronavirus in the penitentiary institutions and pre-trial detention centers of SPS of Ukraine, for 2020” of 12.03.2020 No. 57-ОД/08/ОД-20 (hereafter – the Joint Order). This Order introduced in PIs a special regime of anti-epidemic protection which included the restrictions of the rights of the convicts and the introduction of prophylactic measures in order to prevent the disease outbreaks. In particular, among others, there were measures of disinfection of the buildings and food facilities of the penitentiaries, provision of access to personal protective equipment for the staff, the provision of daily temperature screening and visual examination of the staff of the institutions, visitors and detainees[32].

Despite the positive anti-epidemic measures introduced by the Joint Order, its text only envisages the provision of personal protective equipment to the employees and visitors of the PIs, but it does not mention the necessity to provide the detainees themselves with such means. At the same time the convicts interviewed by our organization state that in many institutions there were no personal protective equipment. It was only used by some employees of the institution who often discarded such equipment after crossing the checkpoint[33]

The cases were not infrequent that could be called systemic, connected to non-compliance with the recommended social distance (3 meters between the convicts during the inspections and other mass events). This recommendation was not complied with in the institutions and no measures are taken related to its implementation.

The Joint Order also provided for active identification of the potential diseased, by way of daily visual examination, temperature screening and interviewing of the convicts and detainees. According to the convicts, this direction of activity was not implemented even in the institutions where the management introduced and maintained the quarantine measures.

The Ministry of Justice has also set a task to ensure the readiness of the health care institutions of the HC of SPSU to identify and isolate the persons with acute respiratory disease caused by SARS-СоV-2 coronavirus, in particular, the availability of the required medicines, disinfectants and personal protective equipment, pulse oximeters, ventilators, oxygen concentrators etc. The Ministry pointed out the need to develop the new or to enhance the existing schemes of prospective re-profiling of health care institutions in case of mass flow of the persons with acute respiratory disease caused by SARS-СоV-2 coronavirus, to transfer all health care establishments to strict anti-epidemic regime, create mobile medical teams with the aim to actively detect persons with acute respiratory disease caused by SARS-СоV-2 coronavirus, and determine the insulators for hospitalization of contact persons with the aim of their examination and the implementation of treatment.

Despite the positive anti-epidemic measures introduced by this Joint Order, its text provides only for the provision of personal protective equipment to the employees of the PI and visitors, but does not indicate the need to provide such means to the convicts themselves. At the same time, the convicts interviewed by our organization note that in many institutions there were no personal protective equipment. They were used only by some employees of the institution, who often took off such means when crossing the checkpoint to the prison area.[34]

At the same time the attention should be paid to the fact that according to the statements made by the convicts during the interviewing, the actual implementation of the measures is not uniform. Some convicts sentenced to life imprisonment report that the communication with the outside world is really transferred to the video conference regime, catering is organized in the rooms where the convicts are held, the reception of parcels is carried out with the use of personal hygiene products – gloves and masks. Furthermore, the parcels are left for keeping for a day and only after that they are given to the convicts. The transfers of the convicts to the court and between the institutions is decreased. On the other hand, many requirements that can have decisive meaning are almost not complied with. For example, there are no changes concerning the movement of the prisoners around the territory of the prison, there are no additional sanitary and hygiene restrictions during the convicts’ work. The disinfection in the institutions is carried out with excessive use of chlorine which is a toxic substance that can cause poisoning, acting, by the way, through the human respiratory system. Among the shortcomings the convicts also note the lack of opportunity to exercise which is important in the conditions of decreased immune capability of the organism. The convicts do not always have the opportunity to have a walk in fresh air which also does not contribute to maintaining the good condition of the respiratory organs of the convicts. The possibility to provide the recommended social distance in the places of detention is a great problem, as well as the lack of awareness among the convicts on the issues of desired behavior algorithms in prevention of disease and in case of detection of the symptoms of the disease. Among other problems noted was the lack of disinfectants, continuous temperature screening of convicts (according to the convicts, in one of the institutions the temperature was measured with a malfunctioning thermometer) and the disinfection of the places of common use. The convicts call the non-compliance of the staff with the requirements of avoidance of the spread of disease one of the main shortcomings of anti-epidemic work, in particular it concerns the non-usage of personal protective equipment. It is a matter of simply ignoring the measures that are recommended in institutions.

The general systemic problem is insufficient amount or complete lack of PPE. Only the employees of the institutions and medical workers are provided with them, and not all institutions have them. As our respondents tell, in penitential institutions and SIZO the masks are only given to the persons who are brought to the court hearings. In correctional centers the prisoners receive them when they leave the premises of the centers. In correctional colonies the convicts usually do not have protective equipment. There are such institutions in which the staff either does not have any masks or does not use them.

The second general systemic problem is the lack of the medical assistance. There is a catastrophic lack of doctors, there are no medicines. As a result, in many institutions the medical assistance is essentially absent. For example, a respondent from Poltava PI No.23 reported the following: “The prisoner has a throat pain for almost a week now, there are headaches, dizziness, muscle pains, sometimes the temperature rises, but the doctor has not visited him yet. Only once a junior inspector gave a thermometer. The temperature was 38,8”. The convict points out that there are too few doctors in the institution, that is why they do not help. This is what a convict from Stryzhavka colony No. 81 wrote: “Although I am in an interregional hospital, it is very difficult to have a consultation with a doctor. My temperature rises every day, there is vomiting, but the help is not provided. The doctor rarely admits patients, and he only examines the newly arrived ones”. A respondent from Dnipropetrovsk PI No. 4 writes “There are very few doctors in the institution, that is why they do not come to help. This is due to impossibility to visit all the convicts in one day. After the doctor is called he comes on the next day at best”. Accordingly, the requirement of daily temperature screening is not complied with.

The third common problem is the impossibility to keep the social distance of more than two meters. It is only possible to attempt to decrease the crowding and change the procedures in the penitentiary institutions with the aim of increasing the social distance between the prisoners after unloading the penitentiary institutions.

The situation varies concerning other questions. The situation is mostly better in female colonies than in male ones. The isolation of the diseased persons is performed promptly in eight colonies, slowly in 15 and it is not performed at all in 13 institutions. In some of the institutions there is the opportunity to exercise, other do not provide it. In 4 institutions the prisoners have access to Internet in the specially equipped rooms once a day according to schedule, in 9 – twice a week, in 7 – once a week, in 16 institutions prisoners do not have access to Internet. In 28 institutions there are no explanations about the symptoms of the disease, how to protect oneself from it, the rules of disinfection etc, in 9 institutions some information is provided.

The prisoners serving the sentence in the form of restriction of liberty (in correctional centers) are most at risk of contracting COVID-19 or transferring this disease outside. Those institutions do not have medical units and the convicts have more contacts with the outside world. Here is a description that is generally typical for all correctional centers: «I am in the correctional center. Around 10% of us work here, others do not do anything, because the institution cannot provide us with work. Only gauze bandages are currently issued in the center due to coronavirus, and only for the persons who leave the territory of the institution. The temperature is measured only for the tick. If the coronavirus gets into our center, everyone will get sick. Since according to the law, we have to be escorted to shops, drug stores and the clinics, and we constantly contact other citizens. We can easily contract the virus or transmit it to others. The living conditions in the institution also contribute to contracting the disease. We are constantly in close contact with one another. It is very difficult to be alone».

The correctional institutions could be unloaded due to amnesty and parole. Back in April the Ministry of Justice with the participation of the experts from Kharkiv Human Rights Protection Group developed the relevant bills, they were approved by the Government on 24 April and introduced for the consideration to the Verkhovna Rada on 27 April (registration numbers 3397 and 3396 respectively). However, they were not examined in the committees. It was told that the President is against such measures, because it would adversely affect his political rating.

The adoption of the above-mentioned bills provided for the realization of the right to life and health of persons in custody and are among the most vulnerable to viral infection, as the conditions in which they find themselves are generally not adapted to large-scale epidemics; in particular, other countries faced it during the pandemic. According to the Ministry of Justice of Ukraine, in the event of the adoption of the outlined bills, more than 3,000 people could be fired from the SCES. The Commissioner for Human Rights of the Verkhovna Rada of Ukraine also addressed the Chairman of the Verkhovna Rada of Ukraine, the Chairmen of the Committees of the Verkhovna Rada of Ukraine and parliamentary factions with a proposal to facilitate the inclusion of the above bills in the agenda of the extraordinary session of the Verkhovna Rada of Ukraine and their operative consideration.

The draft laws were considered on 17 June, on the session of the profile Parliament Committee. The draft law on parole (No. 3396) was rejected, the draft law on amnesty (No. 3397) was sent for revision, however, in September it was removed from consideration.

On 1 July the group of 89 deputies introduced a new bill on Amnesty to the Verkhovna Rada, (reg. No.3765). However, it is not considered either, for the same reasons

What is the level of COVID-19 infection in penitentiaries?

According to the regularly published data from the Health Center of the State Criminal Executive Service (SCES), 1126 diagnoses of COVID-19 are confirmed for 31 detainees, 38 convicts, 924 employees of SCES and 133 employees of Health Center of SCES as of 4 January 2021. Only 2330 PCR tests were performed. The correctional centers, which do not have medical units of the Health Center, are not covered by the statistics.

The last such data was published on April 21. 2342 diagnoses of COVID-19 are confirmed for 181 detainees, 356 convicts, 1596 employees of SCES and 209. employees of Health Center of SCES. 3867 PCR tests were performed.

The scarce data on patients with COVID-19 in the penitentiary system should not be misleading: we believe that there are many more patients, but it is not detected. The testing of the prisoners is not provided for at all. Some of the prisoners underwent tests before coming to SIZO. The monitoring of the correctional colonies shows that in many of them the medical units are filled with the convicts that are treated for colds and are not tested. The medical units usually lack infectious disease doctors that could diagnose the course of the disease. At the same time, there are many requests for medical assistance, the prisoners often believe they have COVID-19. However, it is impossible to verify their statements. Therefore, the result is: no testing – no COVID-19!

As told by Ombudsman, Lyudmyla Denysova, when COVID-19 is detected during the dissection of the deceases prisoners, it is not documented in the statistics; it is believed that they died due to their main disease – AIDS, tuberculosis etc.

The prisoners are discriminated against comparing to the free people: they cannot undergo tests, and the presence of the personal protective equipment (PPE) fully depends on the wish and ability of the management of the institutions to allocate funds for that purpose. The regulations of the Ministry of Justice and Health Center of SCES do not provide for the duty to provide the prisoners with PPE.

The introduction of the quarantine worsened the general situation with provision of medical assistance. For example, the persons with tuberculosis that was detected after the introduction of quarantine were left without the treatment, because they could only receive it in the specialized institutions for such prisoners. Since the transfer of the prisoners was prohibited during the quarantine and Ukrzaliznytsia did not work, such patients remained where they were during the introduction of the quarantine. Thus, seven convicts with tuberculosis were in Interregional Hospital at CC No.85 in Bucha and could not get to the specialized CC No.27 in Kharkiv region, and in June Ombudsman Lyudmyla Denysova arranged the special stage that would transport such patients. The similar story concerned seven convicts in Voznesensk colony No.72 and in other institutions with other diseases.

Meanwhile, in April of this year there was an outbreak of COVID-19 in Pyatihatska colony № 122, in May - in Boryspil colony № 119.

The position chosen by the state authorities, which consists of expecting that the penitentiary institutions and SIZO would remain free from the disease, is wrong. Those mistakes may cost much. If the leadership of the spate is serious about the fight against the spread of COVID-19, it must carry out the testing for the prisoners and staff in the institutions where there are confirmed diagnoses, at the expense of the state, and urgently consider the draft law No.3765 on amnesty.

Some aspects of violations of the convicts’ right to medical care

Summarising status of prison healthcare, we would like to emphasize the following aspects of violations of the convicts’ right to medical care.

1. The delay in diagnosis and treatment, inadequate treatment, or its complete absence, as found in numerous ECtHR decisions (see the table below). The reasons for this are inadequate funding, insufficient material and technical stock of medical institutions, lack of medicines, as well as dishonesty of the staff of the SCES and the administration of institutions. The situation with medical care for detainees is even worse, as there is still no single regulation that would regulate the organization of medical care for such prisoners, despite the fact that a draft of such a document was developed and issued. for public consideration, suggestions were submitted to it in early 2020[35].

2. Absence, in the overwhelming majority of cases, of dietary nutrition for those that need it, as required by medical protocols, particularly in the case of gastrointestinal diseases, diabetes mellitus or hepatitis.

3. Prisoners in the final stages of a terminal illness are not provided with palliative care.

4. Transportation of convicts, especially those that (under Ukrainian regulations) must be escorted by a medical worker, is done in such poor conditions that it was repeatedly recognised by the ECtHR as inhuman or degrading treatment[36]. Furthermore, during transportation, sick convicts are only provided with the most basic medical care since their medical history files are sealed for the duration of the trips and may not be opened before they reach their destination, aside from special cases and only in the presence of a prosecutor.

5. When guarding sick convicts at a civilian hospital, escorting officers chain them to their beds, even those in critical condition, despite their being extremely physically impaired and unable to move on their own. Unjustified or excessive use of restraints on gravely ill convicts has been repeatedly recognized by the ECtHR as inhuman or degrading treatment in cases against Ukraine[37]; restraints were even used on a woman giving birth[38]. Nevertheless, such practices still remain in Ukraine’s penitentiary system. Also, as our monitors learned from conversations with SCES employees, after changes to the regulatory documents on supervision and security (which are not open to the general public), 7 escorting officers are now required instead of 4 for escorting one convict. This means that now two cars instead of one are necessary to take a convict from a PI to a hospital, which doubles the organizational and financial effort. All these escorts remain at the medical institution, complicating, if not paralysing, the work of certain parts of said institution for the duration of the convict’s stay there. These excessive security measures obviously exacerbate the existing difficulties with transporting convicts to civilian medical institutions.

6. Inappropriate conditions of detention for convicts with disabilities, which often reach levels of inhuman treatment. Thus, few rooms in PIs have ramps. Some of these convicts are unable to dress themselves. One of them was put in a punishment cell[39] because he stopped wearing his prison uniform since he couldn’t fasten the buttons. Also, it is virtually impossible to get the disabled status for those who have been awaiting their sentence at a pre-trial detention facility, because, in situations like these, legislation only allows for such status to be granted to convicted persons. . The Head of PI “HC of SCES” admitted the existence of the issue of the disabled prisoners who require supervision: “It seems that the issue is bigger than I imagined” [40].

7. The access to psychiatric care [in Ukrainian penitentiaries] is extremely inadequate for prisoners[41]. In its 2017 report, the CPT also noted that some prisons did not provide psychotropic drugs to detainees due to licensing restrictions and that this situation should be remedied immediately[42].

8. The violations of the requirement of confidentiality of medical information about convicts. The presence of guards during the medical examination, as well as the use of handcuffs when visiting a civilian hospital is a common practice. The NPM report for 2018 states that “the medical examination of newly arrived prisoners was carried out through metal bars in the presence of other prisoners and police officers who escorted the latter to the institution, [...] a direct violation of the human right to respect for his dignity and the right to privacy”[43]. During the treatment of prisoners in civilian hospitals, their hands were handcuffed to their beds, regardless of their state of health.[44]. On the other hand, as a general practice, convicts themselves are not provided with written information on their state of health, despite the fact that the amendments to the Procedure for Organizing Medical Care for Prisoners provide for giving them the copies of medical reports.[45]

9. The problem with the supply of medicines, which are now purchased in a centralized manner, requires considerable time and in fact makes it impossible for the medical units to quickly purchase additional drugs, in the event of such a need. In 2018[46] and 2019[47] the authorities registered the widespread practice of keeping the expired medicines, including antiviral drugs and painkillers.

Issues with the release of convicts on the grounds of a serious illness

Release of convicts suffering from a serious illness constitutes yet another problem. There are several aspects to this issue: shortage of special medical commissions in the system that determine whether a convict has an illness that makes him or her eligible for such release; PI administrations’ reluctance to refer inmates to these commissions; as well as corruption in the system. However, the biggest issue is with the approach of Ukrainian judges toward such release, since, after receiving the conclusion of a special medical commission on whether a convict has an illness from the appropriate lists, the judges take into account the same circumstances as with release on parole, even though their defendants are either at the final stage of a terminal illness or have lost the ability to survive on their own (such as in the case of full blindness or loss of limbs). Unfortunately, when deciding whether to release a person on the grounds of a serious illness, Ukrainian courts still use the guidelines (amended)[48] of the Plenum of the Supreme Court of Ukraine of 1973, according to which in such cases it is necessary, in addition to the opinion of a medical commission, to consider the gravity of the convict’s crimes, his behaviour while serving his sentence, his attitude toward labour, as well as how well he has been reformed, rather than the ECtHR’s perspective expressed in the judgement to the case Yermolenko v. Ukraine (para. 51)[49]:

«There are three particular elements to be considered in relation to the compatibility of an applicant’s health with being in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention; and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002-IX)». Also, according to the ECtHR, «In such circumstances, the Court considers that, given the absolute prohibition of torture, inhuman and degrading treatment, it is not acceptable that the compatibility of the applicant’s state of health with his detention was assessed solely by reference to an exclusive list of diseases and without any appropriate review by national judicial authorities» (ibid., para. 61). In Ukrainian realities, however, a person has no chance of being released if his or her condition is not on the appropriate lists.

As a result of this disregard for the health and life of convicts demonstrated by prison doctors, administrations and, most importantly, judges, most of the sick prisoners die in prison because of the absence of treatment, palliative care in their last days, or any care at all, while those fortunate enough to be released do not live long afterwards.[50]

Mortality rates in PIs

SIHC has a peculiar approach to statistics on mortality rates: convicts that die in civilian hospitals are counted separately. Thus, by transferring terminally ill convicts to a civilian hospital, the penitentiary system artificially lowers mortality rates, using such terminology as "deaths on PI premises". The statistics we received from the SIHC differs greatly from those provided by the Government in the Appendix to para. 198 of its Report:

Statistic/Year

2014

2015

2016

2017

2018

Number of deaths on PI premises

264

166

172

197

209

When a convict is taken to a civilian hospital and dies there, this is not included in the statistics on mortality at PIs. Convicts in the final stages of a terminal illness are taken to civilian hospitals on purpose in order to reduce mortality rates.

Here are some examples of poor healthcare provision to convicts that resulted in their death.

1. At the Kharkiv PTDC, 5 people died between May and mid-August 2016, 4 of them from gastrointestinal disorders. Representatives of the Ombudsman have launched an investigation into this, but so far it has been unsuccessful.

2. In the spring of 2016, in Kyiv, the police arrested a 25-year-old young man suffering from IV stage HIV and tortured him, after which he was taken, on court order, to the Kyiv PTDC. Feverish, slipping in and out of consciousness, he was provided with symptomatic treatment while his health continued to deteriorate. By April 2017 he became too weak to walk or speak. By the summer of 2017, he was unable to eat and remained in a vegetative state, but the court still denied the lawyer’s request to change the restraining measure. The young man died in August 2017. The investigation into his death was initiated only after a complaint had been filed with the investigating judge concerning police inaction. However, responsibility for this investigation has been delegated from one body to another and nothing has actually been done about it.

3. In the summer of 2016, three inmates died in the course of 1.5 months at the Kachanivska Female Correctional Colony no. 54; an ambulance was called in all three cases but it was too late to save the women. One of these cases involved some unknown injection administered by a colony nurse. According to other inmates, at least three other women died in the past as a result of inadequate medical care provided by the same nurse. Special proceedings were initiated by the Ombudsman’s Office in this regard, as well as a criminal investigation into medical malpractice, yet no one has been held accountable.

4. In May 2017, at the Temnivska PI no. 100 in Kharkiv Region, a Belarusian national died of cancer, with which he had been diagnosed only at the 4th stage of it, 3 weeks before his death.

5. In September 2017, three convicts died at the Specialized Tuberculosis Hospital of the Kherson Correctional Colony no. 61. Earlier each of them had applied for release on the grounds of a serious illness, but none lived long enough to see the outcome.

6. In 2018, at the Dnipro PTDC (PI no. 4), a convict who had a heart condition (thrombus in the heart, lower extremity ischemia with obstructed blood flow) that resulted in gangrene and sepsis was treated for purulent abscesses and phlegmons but did not undergo amputation, which caused his death. A criminal investigation into his death was launched at the lawyer’s request, yet nothing is being done in this regard.

7. A man had been serving his sentence at the Dnipro PI no. 89 for robbery since 2014. He had a musculoskeletal disorder as well as tuberculosis. In 2015, he was granted the 2nd degree disability status, in 2016 – 1st degree disability; he had to use a wheelchair to move around and required constant care. In the spring of 2017, his lawyer filed a petition for the man’s release on the grounds of his condition. By that time, the 1.8 m tall convict weighed 53 kg. At the time, special medical commissions that determine whether a person’s condition is on the appropriate List[51] were not working due to the ongoing penitentiary healthcare reform. The first instance court, in defiance of the appellate court, denied the application twice. In April 2019 the patient died, 2 weeks before his release.

Convicts with mental issues have also died under circumstances that suggest unsatisfactory provision of healthcare to and generally poor treatment of sick convicts:

In October 2017, after being brought from the Lutsk PTDC in critical condition, a 25-year-old young man who had been sentenced to a 6 months’ arrest died of toxic hepatitis. The convict was suffering from drug and alcohol addiction and often had to undergo inpatient psychiatric treatment prior to his detention. During his detention at the PTDC, the young man had an epileptic seizure; an ambulance was called and he was provided with emergency care, but then, despite his mental issues, he was still taken to the PTDC. The convict’s health there sharply deteriorated – he was having hallucinations, having conflicts with his cellmates, speaking something unintelligible, shouting, throwing himself at the walls and doors as well as exhibiting aggressive behaviour – he was having delirium tremens. The young man was then put in a 1.5 square meters solitary cell and given neuroleptic and sedative drugs. He died two days later. The criminal proceedings initiated after his death were closed by the investigator due to the absence of signs of a crime, against which the lawyer subsequently filed a complaint with the investigating judge;

In August 2018, one convict killed another at the Lukyanivskyi PTDC’s medical unit in Kyiv, in a ward for people with mental disorders.

In the Appendix to para. 198 of its Report, the Government provides the following statistics on deaths in PIs (including the convicts who died in civilian hospitals), which is quite different from the one given above:

Statistic

2014

2015

2016

2017

Number of deaths in pre-trial detention facilities (number of deaths in civilian hospitals)

127

(58)

103

(44)

126

(53)

164

(80)

Number of deaths in penal colonies (number of deaths in civilian hospitals)

666

(174)

407

(130)

397

(132)

404

(164)

Total number of deaths

793

510

523

568

The Government claims that the number of deaths in PIs in 2015-2017 remained almost the same or was 40% lower than in 2014. However, if we take into account the fact that the number of convicts has decreased more than by half since 2014, the mortality rates in 2015-2017 actually increased by almost 40% according to the figures[52] that correspond to those of the Government in absolute terms:

Statistic

2003

2011

2012

2013

2014

2015

2016

2017

2019

2020

Deaths

824

1169

1,021

911

792

510

523

568

517

485

Per 1,000 convicts

4.30

7.59

6.94

7.18

10.79

7.29

8.66

9.95

9,78

9,73

Furthermore, even according to the Government’s figures, the number of deaths in PTDCs went up in 2017 compared to 2014, and if we account for the decrease in the number of persons held at PTDCs, the mortality rates in PTDCs at least tripled.

The different SCES statistics on mortality rates can be further explained by the absence of publicly available official statistics on illnesses and deaths among the convicts, which had been available on the agency’s official website in the past.

Violations of the right of convicts not to be subjected to torture or cruel, inhuman or degrading treatment found by the ECtHR

Almost all types of violations of the right of detainees to healthcare mentioned in this comment have been recognized by the ECtHR as violations of Article 3 ECHR in its judgements in cases against Ukraine. The number of persons recognized by the ECtHR as victims of Ukraine’s violation of Article 3 ECHR in the context of inadequate healthcare provision to persons held in penitentiary facilities in 2019 is greater than that for the 5 previous years (2014-2018). The ECtHR has started consolidating applications concerning these issues into larger cases and considering them jointly without studying their specific circumstances. Thus, in ECtHR’s judgement in the case Korol and Others v. Ukraine (no. 54503/08 and 7 others, judgement of 7 March 2019), the ECtHR examined 8 applications at the same time[53].

Statistic/Year

2014

2015

2016

2017

2018

2019

2020

Number of judgements in cases against Ukraine where Ukraine was found to be in violation of the right not to be subjected to torture, cruel, inhuman or degrading treatment/number of victims

1/1

6/6

4/4

2/2

4/4

14/21

6/6

The 2019 judgements concern violations that took place in 2016-2017 and 2017-2018, that is, after the penitentiary healthcare reform. It should also be noted that ever since its decision in the case Nevmerzhitsky v. Ukraine (decision on admissibility of 30/03/2004, application no. 54825/00), the ECtHR has consistently considered complaining of inadequate medical treatment to prosecuting authorities an ineffective domestic remedy[54]. Eventually the ECtHR decided that Ukraine lacks any effective mechanisms of protection against violations of the right to healthcare, including judicial ones. This is evidenced by numerous instances when PI administrations do not even comply with court orders to provide convicts with the medical care they require. Thus, an incident like this recently happened at the Kharkiv PTDC, where the medical service once again failed to comply with a court order to provide treatment to a convict with spine problems.

A lawyer once managed to convince an administrative court to declare the negligence of a PI’s administration unlawful and to obligate it to provide proper treatment to his client. This, unfortunately, is a rare occurrence, and besides, the convict had already received required treatment by the time the court reached a decision.

In the summer of 2019, the Vilnyanskyi District Court of Zaporizhia Region ordered a medical examination following the request of a convict, who has HIV, hepatitis C and tuberculosis, to be released from the Kamyansk PI no. 101. However, so far the institution has failed to comply with the court order.

Conclusions

1. The reform of the SCES healthcare system failed to improve the quality of prison healthcare, which in most PIs remains unsatisfactory or outright catastrophic due to the shortage of medical personnel, equipment and medicines.

2. With the PC and PTDC administrations no longer responsible for the health of prisoners and due to the complete absence of publicly available information on the activities of the SIHC and its structural units, it is now extremely difficult to challenge the inaction of prison medical personnel. There is also no publicly available public official data on illnesses among prisoners, or statistics on mortality.

3. The option for prisoners to undergo treatment at civilian hospitals provided for by the CEC is an illusion of choice for most of them due to the high cost of such treatment.

4. Prisoners in the final stages of terminal illnesses are neither released form incarceration nor provided with palliative care. Cases when someone is released on the grounds of a serious illness are extremely rare, and this usually happens the very end of the prisoner’s life.

5. The epidemic of COVID-19 coronavirus showed huge shortcomings in the work of prison medical service in sanitary and anti-epidemic aspects.

Recommendations:

a) conduct a nationwide inspection of the activities of regional branches and separate subdivisions of the SIHC;

b) make the prison medical system subordinate to the MoH and remove its ties to the SCES;

c) carry out anti-epidemic measures required by law to prevent the spread of infectious diseases;

d) regulate all organisational aspects of the activities of the prison medical service, including standards on the required number of medical personnel as well as on the sufficient amount of equipment and medicines,

e) increase pay for medical personnel in order to bring more specialists into the prison healthcare system,

f) make all statistics on the activities of the prison healthcare system publicly available,

g) ensure access of prisoners to their health records.

h) amend legislation on release of the prisoners with grave diseases from further serving of a conviction introducing the mandatory release on presence of a disease from the List of the ones approved by the MoH and the MoJ;

i) remove the departmental bodies of sanitary and epidemiological supervision and charge the relevant subdivisions of MoH with functions of control and supervision.


disclaimer / Embassy of Germany

Project “Promoting freedom from torture and prisoners’ right to a medical care in Ukraine based on international human rights standards”


EU project “Resisting Torture, Ill-Treatment and Impunity in Ukraine”


[1] https://minjust.gov.ua/news/announcement/gromadski-obgovorennya-proektu-periodichnoi-dopovidi-ukraini-pro-vikonannya-polojen-konventsii-oon-proti-katuvan?fbclid=IwAR18NrKG6QsgGcRe_ti02XGCs26mkeWIQwPhwv4rtbLnnfHr0j7TwYjM5Pw

[2]http://khpg.org/index.php?id=1495012193&w=%D0%B0%D0%BA%D1%82+%D0%BF%D0%BE +%D0%91%D0%92%D0%9A%5C-85

[3] http://khpg.org/index.php?id=1531552900&w

[4] http://khpg.org/index.php?id=1543315523&w

[5] Information based on SCES’s reply to the KHPG

[6] https://ombudsman.gov.ua/ua/page/npm/provisions/reports/ .

Спеціальна доповідь Уповноваженого Верховної Ради України з прав людини про стан реалізації національного превентивного механізму у 2019 році, с.32.

[7] https://www.gp.gov.ua/ua/news?_m=publications&_c=view&_t=rec&id=264711. Прес-реліз від 15.01.2020.

[8] https://coz.kvs.gov.ua/?page_id=160.

[9] https://www.coe.int/uk/web/kyiv/-/how-to-improve-health-care-in-ukrainian-prisons-recommendations-from-an-expert-of-joint-eu-council-of-europe-project

[10] https://www.coe.int/uk/web/kyiv/-/how-to-improve-health-care-in-ukrainian-prisons-recommendations-from-an-expert-of-joint-eu-council-of-europe-project

[11] https://ombudsman.gov.ua/files/marina/zvit2_web.pdf

[12] Response of HC of SCES of 12.03.2021

[13] http://khpg.org/index.php?id=1472626296&w=%E2%84%96

[14] http://khpg.org/index.php?id=1543315523&w

[15] KHPG Database of Applications for Legal Aid

[16] http://www.ombudsman.gov.ua/files/Dopovidi/spec_dopov_npm_2016_n.pdf

[17] http://khpg.org/index.php?id=1531552900&w

[18] http://khpg.org/index.php?id=1553780490&w

[19] http://khpg.org/index.php?id=1565960227

[20]https://hudoc.echr.coe.int/eng#{%22appno%22:[%2249872/11%22],%22documentcollectionid2%22: [%22JUDGMENTS%22],%22itemid%22:[%22001-119382%22]}

[21]https://hudoc.echr.coe.int/eng#{%22appno%22:[%2226744/16%22],%22documentcollectionid2%22: [%22JUDGMENTS%22],%22itemid%22:[%22001-194188%22]}

[22] http://khpg.org/index.php?id=1565960227

[23] https://ombudsman.gov.ua/files/marina/zvit2_web.pdf

[24] http://www.ombudsman.gov.ua/files/Dopovidi/spec_dopov_npm_2016_n.pdf

[25] http://khpg.org/index.php?id=1559041136

[26] http://hudoc.echr.coe.int/eng?i=001-167128

[27] http://hudoc.echr.coe.int/eng?i=001-166965

[28] http://hudoc.echr.coe.int/eng?i=001-189592

[29] http://hudoc.echr.coe.int/eng?i=001-194008

[30] http://hudoc.echr.coe.int/eng?i=001-188382

[31] http://hudoc.echr.coe.int/eng?i=001-190025

[32] http://khpg.org/index.php?id=1585728892

[33] http://khpg.org/index.php?id=1588607936

[34] http://khpg.org/index.php?id=1588607936

[35] https://rm.coe.int/09000016809f57a4, Communication from Ukraine concerning the case of Nevmerzhitsky v. Ukraine (Application No. 54825/00) and Sukachov v. Ukraine (Application No. 14057/17)

[36] http://hudoc.echr.coe.int/eng?i=001-167128 ; http://hudoc.echr.coe.int/eng?i=001-141632

[37] http://hudoc.echr.coe.int/eng?i=001-117134 ; http://hudoc.echr.coe.int/eng?i=001-158963

[38] http://hudoc.echr.coe.int/eng?i=001-161543

[39] http://khpg.org/index.php?id=1543315523&w

[40]https://www.slidstvo.info/articles/ochilnyk-tyuremnoyi-medytsyny-kerivnyky-kolonij-zvykly-shho-medyk-povynen-buty-rabom/.

[41] CPT/Inf (2018) 41, para. 90).

[42] Ibid.

[43] Special Report of the Ombudsperson, Op. cit. p. 14.

[44] CPT/Inf (2012) 30, §8 and 53.

[45] https://zakon.rada.gov.ua/laws/show/z0990-14#Text

[46] https://inspections.gov.ua/subject/view/inspections?subject_id=250459&tab=2018&page=1.

[47] https://inspections.gov.ua/subject/view/inspections?subject_id=250459&tab=2019.

[48] https://zakon.rada.gov.ua/laws/show/v0008700-73

[49] http://hudoc.echr.coe.int/eng?i=001-114468

[50] KHPG Strategic Litigation Database

[51] In June 2019, KHPG sent an open petition to the Minister of Justice concerning the absence of special medical commissions **

[52] http://ukrprison.org.ua/articles/1612352140

[53] http://hudoc.echr.coe.int/eng?i=001-191359

[54] http://hudoc.echr.coe.int/eng?i=001-61685

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