Case of Pivovarnik v. Ukraine

CASE OF PIVOVARNIK v. UKRAINE

(Application no. 29070/15)

JUDGMENT

STRASBOURG6 October 2016

ECHR CasesPIVOVARNIK v. UKRAINE

Document URL : http://hudoc.echr.coe.int/eng?i=001-166965

by Alexander Aboimovaboimov-au@i.ua

31.10.2016

ECHR Cases

Both general anddetailed overviewof the case.

PIVOVARNIK v. UKRAINE

PIVOVARNIK v. UKRAINE ECHR Cases

Who is the applicant?

Mr Yuriy Stepanovich Pivovarnik, a Ukrainian national

He alleged that:While held in detention he had not been provided with adequate medical assistance for his hepatitis.

He alleged that:While held in detention he had not been provided with adequate medical assistance for his hepatitis.Also, the Government’s failure to comply with the interim measure indicated by the Court had violated his right of individual application.

What was the violation of the Convention for the Protection

of Human Rights and Fundamental Freedoms in this particular case?

Article 3 - Prohibition of torture - Degrading treatment

(Substantive aspect)

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Article 3 - Prohibition of torture - Degrading treatment

(Substantive aspect)Article 34

- Individual applications (Hinder the exercise of the right of petition)

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Article 3 of the Convention

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“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

reads as follows:

The European Court of Human Rights's assessment

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The health of detainees has to be adequately secured. A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention.

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The “adequacy” of medical assistance remains the most difficult element to determine.

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Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole.

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Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities.

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The Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment”.

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“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

reads as follows:

A respondent State’s failure to comply with an interim measure entails a violation of the right of individual application.

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Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court.

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It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.

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The Court must have regard not only to the letter but also to the spirit of the interim measure indicated, and indeed to its very purpose.

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Interim measures are to be complied with as a matter of urgency. A delay in compliance has lead the Court to find violations of Article 34 even in cases where the interim measure was eventually complied with.

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That was general overview.

But, there are more details next.

PROCEDURE

The case originated in an application (no. 29070/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Stepanovich Pivovarnik (“the applicant”), on 16 June 2015.

The applicant was represented by Ms I. Monina, a lawyer practising in Kyiv.The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

PROCEDURE

The applicant alleged, in particular, that while held in detention he had not been provided with adequate medical assistance for his hepatitis.

PROCEDURE

THE CIRCUMSTANCES OF THE CASE

The applicant on an unspecified date prior to his arrest had been diagnosed with hepatitis C (“HCV”).

was arrested on suspicion of committing a drug-related offence and on 7 July 2014 placed in Kirovograd Remand Prison no. 14 (“the prison”).

26 June 2014

the next day the Svitlovodsk Court remanded the applicant in custody. The applicant appealed, arguing in particular that he was suffering from HCV.

the Kirovograd Regional Court of Appeal upheld the detention order. The applicant’s pre-trial detention was subsequently extended until his conviction.

14 July 2014

the Svitlovodsk Court convicted the applicant of the unlawful purchase, possession and transportation of drugs and sentenced him to three years’ imprisonment.

24 March 2015

the Kirovograd Regional Court of Appeal amended the applicant’s sentence and released him on probation

13 Oct. 2015

The parties’ submissions

The applicant submitted that for a year after his arrest he had received no adequate medical assistance. Examinations he had undergone had not been completed and medical treatment had merely treated the symptoms. For him, this revealed a systematic defect in the prison system.

PIVOVARNIK v. UKRAINE ECHR CasesThe parties’ submissions

The Government submitted that the applicant had had access to the prison doctor on several occasions and had on those occasions requested certificates to be presented to the courts considering his criminal case.

The Government submitted that the applicant had had access to the prison doctor on several occasions and had on those occasions requested certificates to be presented to the courts considering his criminal case. From 6 until 9 July 2015 the applicant had been examined at the City Hospital and had subsequently received certain recommendations in connection with his HCV– in particular, he had been prescribed certain hepatoprotectors. He had started receiving them on 1 September 2015. Afterwards the applicant had undergone blood tests and had been examined by specialists.

The Government submitted ...

The applicant had not complained to the prosecutor’s office about the alleged inadequacy of the medical assistance he had received. ..had been provided with the necessary medical examination and treatment corresponding to his state of health.

The All-Ukrainian Network (a third party) submitted that …hepatitis was an important cause of mortality. Its prevalence in Ukraine was above the regional average. Using modern treatment methods chronic HCV was curable through a 12-48 week course of treatment with a combination of drugs (pegylated interferon with ribavirin and/or inhibitors of viral proteases). However, the cost of this treatment, which was in the range of 16,000 United States dollars per course, put it beyond the reach of the overwhelming majority of Ukrainians.

The All-Ukrainian Network (a third party) submitted that …

The State had adopted a number of programmes and taken a number of steps in an attempt to combat hepatitis and extend access to treatment, but a lack of funding meant that in practice access to treatment had been extremely limited: currently the State provided funding for the treatment of only 2,000 of the 44,000 patients in the general population who needed it. According to the All-Ukrainian Network, no HCV treatment had been provided in the prisons of the State Correctional Service during the years 2013-2015.

PIVOVARNIK v. UKRAINE ECHR CasesArticle 3 of the

Convention

The Court’s assessment - General principles

34. The Court has emphasised on many occasions that the health of detainees has to be adequately secured. A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention.

35. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate.

35. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis.

35. ...The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole.

35. ...The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities.

36. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment”.

The Court’s assessment - present case

37. The Court observes that on 3 December 2014 the prison authorities recognised that the applicant needed to be examined by an infectious diseases specialist in connection with his HCV. However, no action was apparently taken in respect of those recommendations until 6 July 2015, after the Court indicated the interim measure in the present case.

The Court’s assessment - present caseArticle 3 of the

Convention

37. The Court observes that on 3 December 2014 the prison authorities recognised that the applicant needed to be examined by an infectious diseases specialist in connection with his HCV. However, no action was apparently taken in respect of those recommendations until 6 July 2015, after the Court indicated the interim measure in the present case.

38. The Court is prepared to accept that prior to 3 March 2015 this lack of action was due to the applicant’s failure to cooperate by submitting to a blood test and thus obtaining confirmation of the HCV diagnosis, on which he insisted.

39. On 3 March 2015 a blood test yielded results which tended to support the diagnosis of HCV, which was eventually definitively confirmed. This – combined with the acknowledgement, on 3 December 2014, that the applicant needed a consultation with an infectious diseases specialist – clearly indicated that at least from 3 March 2015 the prison authorities had been unequivocally aware that the applicant’s hepatitis required medical attention.

Convention

39. On 3 March 2015 a blood test yielded results which tended to support the diagnosis of HCV, which was eventually definitively confirmed. This – combined with the acknowledgement, on 3 December 2014, that the applicant needed a consultation with an infectious diseases specialist – clearly indicated that at least from 3 March 2015 the prison authorities had been unequivocally aware that the applicant’s hepatitis required medical attention.

40. Even so, there was no further action for more than four months, until 6 July 2015.

41. On 8 June 2015 the prison’s medical unit acknowledged that the applicant’s health had worsened in the previous two months and that on 9 July 2015, after a comprehensive medical examination, the doctors had found that the applicant was suffering from liver impairment. It cannot be ruled out that this was a result of a lack of medical care in respect of the applicant’s hepatitis.

Convention

42. The Court is aware that the applicant’s condition was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment.

Convention

42. The Court is aware that the applicant’s condition was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment. In fact, as indicated above, the authorities did find signs of deterioration in the applicant’s condition – in particular, that he suffered from a degree of liver impairment – and eventually recommended certain treatment.

Convention

42. The Court is aware that the applicant’s condition was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment. In fact, as indicated above, the authorities did find signs of deterioration in the applicant’s condition – in particular, that he suffered from a degree of liver impairment – and eventually recommended certain treatment. For the Court, this indicates that the applicant’s condition in fact required medical attention and treatment, which was denied to the applicant for a substantial period of time.

Convention

44. In examining the applicant’s particular situation, the Court is also aware of the general background of the lack of sufficient medical care for hepatitis patients in the Ukrainian places of detention .

45. The Court concludes that the prison authorities failed to ensure regular and systematic medical supervision of the applicant’s condition and to put in place a comprehensive treatment strategy in respect of his hepatitis.

44. In examining the applicant’s particular situation, the Court is also aware of the general background of the lack of sufficient medical care for hepatitis patients in the Ukrainian places of detention .

45. The Court concludes that the prison authorities failed to ensure regular and systematic medical supervision of the applicant’s condition and to put in place a comprehensive treatment strategy in respect of his hepatitis.

46. These considerations are sufficient for the Court to find that there has been a violation of Article 3 of the Convention.

The applicant complained that the Government’s failure to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court had violated his right of individual application.

His medical examination of 6-9 July 2015 had been incomplete, and that blood tests recommended on 9 July 2015 had not been performed. He had started receiving treatment with medications prescribed (also on 9 July 2015) only in September 2015.

“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it....3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”

Rule 39 of the Rules of Court

reads as follows:

The Government submitted that there had been no breach of Article 34. In particular, after the interim measure had been indicated, the applicant had been placed in the City Hospital and had undergone an examination there between 6 and 9 July 2015. On 14 July 2015 the Government had reported on the steps taken. In response to the Court’s letter of 26 August 2015 the applicant had been presented for additional tests and examinations.

51. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of the right of individual application.

52. A complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention.Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court.

52. ...It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.

53. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated, and indeed to its very purpose.

54. Interim measures are to be complied with as a matter of urgency. A delay in compliance has lead the Court to find violations of Article 34 even in cases where the interim measure was eventually complied with.

55. The Court notes that on 19 June 2015 under Rule 39 of the Rules of Court it indicated to the respondent Government that they should (i) present the applicant urgently for medical examination at the City Hospital; (ii) immediately provide the appropriate treatment to the applicant; and (iii) inform the Court by 17 July 2015 about the applicant’s state of health and the steps taken.

56. The Court notes that, in response to this measure, the Government secured the applicant’s examination at the City Hospital on 6 July 2015 and duly informed the Court about the results of that examination. Upon the applicant’s discharge from the hospital on 9 July 2015, a number of recommendations were made. In particular, the applicant was prescribed hepatoprotectors and it was recommended that he undergo a number of blood tests.

57. However, the prison authorities did not take any steps to comply with those recommendations until 1 September 2015 that is only after the Court forwarded to the Government the applicant’s complaint that those recommendations were not being followed through. It appears that even then compliance was not comprehensive – in particular the PCR blood test was apparently never conducted.

58. The Court must conclude, therefore, that the prison authorities failed to comply with the interim measure from 9 July to 1 September 2015. The Government have not identified any objective impediments to compliance with the interim measure in that period.

59. Whether or not that delay caused the irreversible damage which the interim measure was designed to prevent, is, in itself, irrelevant to the Court’s assessment.

60. The purpose of the interim measure indicated by the Court, as is apparent from its very wording, was to ensure that the applicant received appropriate medical assistance in detention while his case was pending before the Court.

60. ...However, this purpose could not be achieved since the prison authorities merely ensured the initial examination of the applicant and then, having provided a report to the Government Agent’s office (and, through it, to the Court), apparently neglected to follow up on any of the medical recommendations made following that examination without providing any justification for this omission.

61. Such conduct on the part of the prison authorities undermined the effective operation of the interim measure indicated by the Court since it required the Court to continue to intervene to make sure that the respondent State continued to comply with the measure even after they had reported to the Court that the measure has been complied with.

62. The Court concludes, therefore, that the respondent State has failed to fulfil its obligation under Article 34 of the Convention.

ECHR Cases

“If 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.”

provides:

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Holds that there has been a violation of Article 3 of the Convention

Holds that respondent State has failed to fulfil its obligation under Article 34 of the Convention

Holds that respondent State has failed to fulfil its obligation under Article 34 of the ConventionHolds that the respondent State is to pay the applicant:● EUR 4,000, in respect of non-pecuniary damage;● EUR 121, in respect of costs and expenses.

That’s the case.

Thank you!

Document URL : http://hudoc.echr.coe.int/eng?i=001-166965

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