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FIFTH SECTION

Application no. 42184/09
Dmytro Valentynovych KUSHNIR
against Ukraine
lodged on 2 August 2009

STATEMENT OF FACTS

The applicant, Mr Dmytro Valentynovych Kushnir, is a Ukrainian national who was born in 1983 and is presently detained in Kyiv Pre-Trial Detention Centre no. 13 (“the SIZO”). He is represented before the Court by Ms L.S. Mnushkina, a lawyer practising in Kyiv.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has a number of serious health concerns. In April 2007 he was diagnosed with tuberculosis for the first time, and in May 2007 he tested HIV-positive. In November 2007 an HIV/Aids specialist stated that the applicant had HIV infection of the third clinical stage and suffered from AIDS. He was registered for monitoring in the AIDS Centre. The applicant also suffers from chronic hepatitis.

On 3 July 2009, at about 7 p.m., the applicant went to the Shevchenkivskyy District Police Department following a telephone call from the police. As noted by the applicant summarily in his submissions to the Court, there were some criminal proceedings pending against him and he was subject to an undertaking not to abscond.

According to the applicant, he was arrested in the police station upon his arrival there without any explanations. The police allegedly beat him, trying to obtain his confession to some unspecified crimes.

In the morning 4 July 2009 the applicant’s mother received a phone call from a person who had been detained in the same police station and who had been released that morning. The applicant had asked him to pass a message to her that he was detained there and that he had been questioned and ill-treated by the police during the whole night. The applicant’s mother contacted the Shevchenkivskyy District Police Station in order to verify that information, but was told that her son was not there. She therefore complained to the police and the prosecution authorities about his disappearance.

On 4 July 2009, at 2.15 p.m., the police issued a report, according to which the applicant had been apprehended at 2 p.m. on that date in the premises of the Shevchenkivskyy District Police Station. The reason for his arrest was indicated as follows: “Prevention of possible absconding from the investigation and trial and ensuring the enforcement of the verdict”. The applicant signed the report with a note that he had nothing to state. He also signed the extracts from the Constitution and the legislation on pre-trial detention as regards his procedural rights (in particular, the privilege against self-incrimination and right to legal assistance).

On 7 July 2009 the Shevchenkivskyy District Court of Kyiv remanded the applicant in custody pending trial. It was mentioned in its ruling that the applicant was a suspect under Article 186 § 2 of the Criminal Code. The court noted that there were “sufficient reasons to believe that the applicant had committed a crime and that if he remained at liberty he could abscond from the investigation and trial, could continue criminal activities or hinder establishing the truth”. Having regard to his personality and, in particular, his past criminal record, as well as the gravity of the crime he was suspected of, the court granted the investigator’s application for his pre-trial detention as the right restraint measure.

The applicant was detained in the Kyiv Temporary Detention Facility (“the ITT”).

On 8 July 2009 he was transferred to the SIZO. Upon his arrival there he underwent a medical examination which revealed post-tuberculosis residual lung changes. No injuries were documented.

On 13 July 2009 the applicant’s mother complained to the police and to the prosecution authorities about the alleged ill-treatment of her son in police custody and about the lack of adequate medical assistance. She noted that he suffered from a number of contagious diseases and could not therefore be held in detention.

On 16 July 2009 the applicant’s mother appealed against the ruling of 7 July 2009 on the applicant’s pre-trial detention. She noted that the impugned ruling did not even mention a single fact regarding what exactly the applicant was suspected of, apart from the general reference to Article 186 § 2 of the Criminal Code. It did not mention whether a criminal case had been opened against the applicant in that regard. Neither did it take into account his health condition. Lastly, the applicant’s mother noted that her son had visited the police station of his own free will and that there had been no reasons for detaining him.

On 17 July 2009 the applicant’s mother requested the SIZO governor to inform her in writing about the health condition of her son and about the medical assistance provided to him. No reply however followed.

On the same date she personally met with the head of the SIZO medical unit who allegedly dismissed her complaints in a rude manner.

On 20 July 2009 the Kyiv Narcological Hospital issued a note, according to which the applicant was not registered there as a drug addict.

On 21 July 2009 the applicant’s mother complained to the Kyiv City Prosecutor’s Office that her earlier complaints of 4 and 13 July 2009 had been ignored by the SIZO administration, as well as by the lower prosecution authorities.

On 23 July 2009 she inquired with the Court of Appeal why her appeal had not been examined. This inquiry apparently remained without answer.

On 24 July 2009 the applicant’s mother was allowed to meet with her son in the SIZO for the first time. He complained to her about his poor health and alleged that he had been ill-treated. The applicant also complained that he was held in a cell with forty inmates without any medical assistance.

On 25 July 2009 the applicant was taken from the SIZO to the Emergency Hospital where he underwent surgery in respect of acute appendicitis and peritonitis.

On 28 July 2009 the applicant’s mother once again complained to the Kyiv City Prosecutor’s Office and the Chief of the Kyiv City Police Department about the alleged ill-treatment of her son by the police, his allegedly unjustified and unlawful detention, and the lack of medical treatment in detention, as well as about the conditions of his detention.

On 31 July 2009 the applicant was taken from the hospital back to the SIZO. From 31 July to 16 November 2009 he underwent post-surgery treatment in the SIZO medical unit. He was also treated for tuberculosis.

On 10 August 2009 the investigator commissioned a forensic psychiatric examination of the applicant with a view to establishing whether he could be held accountable for the crime he was suspected of. As noted in that decision, the applicant was suspected of having openly stolen a mobile telephone from a passer-by during the night on 22 June 2009.

On 17 August 2009 the applicant’s mother requested the Chief Doctor of the Kyiv Emergency Hospital to confirm in writing that an ambulance had been called for the applicant during court hearings twice and to specify the medical assistance provided to him.

On 19 August 2009 the Kyiv Emergency Hospital replied that the requested information was confidential.

On 9 December 2009 the applicant was examined by an infectious disease doctor and underwent a CD4 test[1]. Its result was 618 cells/mm3.

On 22 December 2009 a doctor on duty in the SIZO issued a note stating that the applicant was suffering from acute bronchitis and could not participate in the court hearing.

On 13 January 2010 the applicant was examined by an infectious disease doctor who gave the following diagnoses: HIV-infection of the second clinical stage, tuberculosis and chronic hepatitis. The doctor recommended continuation of the treatment for tuberculosis.

On 29 January 2010 the applicant was examined by a tuberculotherapist who gave recommendations on his further treatment.

On 23 February 2010 the SIZO doctor issued a note that the applicant could not participate in court hearings because was suffering from tuberculosis in an active phase and had fever of 39ºC.

On 26 February 2010 he was examined again by the infectious disease doctor who recommended a repeated CD4 test in order to decide about the possibility to apply the antiretroviral therapy.

On 30 June 2010 the AIDS Centre doctors prescribed the antiretroviral therapy for the applicant. According to him, this prescription was however not followed in practice.

On 24 December 2010 the applicant was consulted by a professor of the Institute of Phthisiology who diagnosed residual changes in his lungs after tuberculosis and recommended relapse-prevention treatment in spring and autumn. The applicant was then discharged from the SIZO tuberculosis ward.

On 11 January 2011 the applicant complained to the General Prosecutor’s Office that the staff of the medical unit had failed to provide him with adequate treatment and had threatened to transfer him to an ordinary cell if he did not write a statement that he had no complaints against them.

On 21 February 2011 the applicant was examined by a tuberculotherapist who confirmed the earlier conclusions and noted that no inpatient treatment was required.

From 11 to 30 March 2011 the applicant was treated for pneumonia in the SIZO medical unit.

On 11 April 2011 he underwent a CD4 test which showed 618 cells/mm3.

Following a complaint from the applicant’s mother as regards the failure to apply the antiretroviral therapy to her son, on 26 April 2011 the SIZO administration informed her that the applicant had been undergoing treatment for tuberculosis and that a consultation by an infectious disease specialist was needed to decide about the antiretroviral therapy. For the applicant to have such consultation outside the SIZO, the permission of the investigator was required. Lastly, it was noted in the letter that the SIZO did not have any convoy facilities itself to ensure the applicant’s transportation.

On 14 July 2011 the applicant’s mother complained to the General Prosecutor’s Office that on 8 July 2011 the SIZO administration had administered emetics to the applicant in order to find out whether there were drugs in his organism. She submitted that it had been an unjustified, humiliating and dangerous measure.

On 13 October 2011 the applicant’s mother repeated the above complaint. She also complained that on 11 October 2011 the applicant had been transferred to a humid and cold cell. Furthermore, she alleged that on 12 October 2011 the applicant had been beaten on the instruction of a police officer. She therefore requested his forensic medical examination.

On 25 October 2011 the applicant’s lawyer (who started representing him on that date) inquired with the head of the SIZO as to whether the applicant had undergone a forensic medical examination and as to how much weight he had lost in detention. She also complained that the applicant was unjustifiably incarcerated, that on 13 and 19 October 2011 he had been beaten by some persons wearing masks, and that on 20 and 21 October 2011 he had been held in a cell without any food or water during the whole day.

On 9 November 2011 the head of the SIZO medical unit replied that the applicant had not raised any complaints himself.

According to the applicant (188 cm tall), he has lost weight from 87 to 52 kg while in detention.

B.  Relevant domestic law

Article 186 § 2 of the Criminal Code provides for four to six years’ imprisonment as penalty for robbery associated with violence and/or committed by a group.

C.  Relevant international material

Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 September 2009 [CPT/Inf (2011) 29] read as follows:

“C.  Establishments under the authority of the State Department on Enforcement of Sentences

1.  Preliminary remarks

74.  The delegation observed for itself that the overcrowding was particularly acute in the Kyiv SIZO, where there was some 1 m² of space per prisoner in certain cells, with inmates sharing beds or sleeping on the floor. [...]

2.  Torture and other forms of ill-treatment

77.  [...] at the Kyiv SIZO, there were indications that, in a few cases, the use of “special means” may have been disproportionate and misused as a form of punishment. Further, at the latter establishment, the delegation heard an allegation that prisoners were beaten during a cell search. [...]

The CPT recommends that the management of the Kyiv SIZO [...] continue to deliver to custodial staff the clear message that the ill-treatment of inmates is not acceptable and will be dealt with severely. [...]

5.  Conditions of detention of the general prison population

a.  pre-trial establishments (SIZOs)

i)  the SIZO in Kyiv

100.  The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously. [...]

With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates [...]. The vast majority of the inmate population was on remand. [...]

101.  The vast majority of the cells holding male prisoners were seriously overcrowded (for example, 52 prisoners in a cell measuring some 50 m² and containing 40 beds; 32 prisoners in a cell measuring 33 m² and containing 20 beds). In some cells, the number of prisoners exceeded the number of beds available, and inmates took turns to sleep on the available beds or slept on the floor. The cells were packed with double bunk-beds, leaving very little space for any other furniture. In some cells, there were TV sets which belonged to the occupants.

Because of the human mass, ventilation was almost non-existent and the cells were very hot and stuffy. The level of hygiene was also highly unsatisfactory: in some cells the delegation saw cockroaches, and prisoners also referred to the presence of mice and rats. The in-cell sanitary installations (a partitioned toilet and sink) were generally in a decrepit state and were clearly not sufficient for the numbers of inmates held in the larger cells.

The negative consequences of the deplorable material conditions described above were compounded by the fact that some prisoners had spent lengthy periods of time at the SIZO [...]. In the CPT’s view, the combination of negative factors to which a large number of prisoners were subjected at the Kyiv SIZO (overcrowding, appalling material conditions and levels of hygiene, and practically non-existent activity programmes) could easily be described as inhuman and degrading treatment.

b.  staff, facilities and medication

125.  The health-care service of the Kyiv SIZO had a staff complement of 31.5 posts (all of which were filled). Full-time staff included a head doctor, three GPs, a pulmonary specialist, a psychiatrist, a radiologist, a venero-dermatologist, two dentists, seven [medical attendants] and five nurses. Further, ten visiting specialists held regular surgeries (of three hours per week). The feldshers provided a 24-hour presence. According to the head doctor, more specialists in infectious diseases were needed, in view of the high number of prisoners suffering from such diseases.

Given the increase in the inmate population at the Kyiv SIZO, the above-mentioned health-care staffing resources are clearly insufficient to provide appropriate care to some 3,400 prisoners. Despite the staff’s efforts and goodwill, this shortage of staff had detrimental effects on the quality of care. Not surprisingly, the delegation heard many complaints about considerable delays in access to a doctor and [...].

As regards the facilities of the medical unit, some of the cells had been refurbished and offered appropriate conditions. However, other cells were awaiting renovation. In particular, conditions in [...] cell No. 265 used as an isolator required urgent improvement.

The CPT recommends that the Ukrainian authorities take urgent steps at the Kyiv SIZO to:

- reinforce significantly the health-care staff team with additional feldshers and/or nurses;

- employ additional doctors, in particular specialists in infectious diseases;

- refurbish the remainder of the cells in the medical unit, cell [...] 265 being treated as a priority.”

COMPLAINTS

The applicant complains under Article 3 of the Convention about his alleged ill-treatment in police custody following his arrest on 3 July 2009 and later during his detention in the SIZO.

He also complains under this provision, as well as relying on Article 2, about the conditions of his detention and the lack of adequate medical care.

The applicant next complains, with reference to Article 13, that he has no effective domestic remedies in respect of the aforementioned complaints.

He further complains under Article 5 about the alleged unlawfulness and length of his pre-trial detention, as well as his inability to obtain its proper judicial review.

Lastly, the applicant makes a general reference to Article 6 of the Convention.

QUESTIONS TO THE PARTIES

1.  Was the applicant subjected to torture, inhuman or degrading treatment or punishment in breach of Article 3 of the Convention following his apprehension by the police on 3 (or 4) July 2009?

2.  Were any coercive measures (including, but not limited to, incarceration, forceful administration of medications, and physical force) applied to the applicant during his subsequent detention and, if so, were they in breach of Article 3 of the Convention?

3.  Has there been an effective domestic investigation into all of the applicant’s allegations of ill-treatment in police custody?

4.  Have the conditions of the applicant’s detention been compatible with the requirements of Article 3 of the Convention?

5.  Has the applicant received adequate medical treatment while in detention, in compliance with Article 3 of the Convention?

6.  Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

7.  Was the applicant’s detention compatible with Article 5 § 1 of the Convention? In answering this question, the Government are requested to comment, in particular, on the exact time and date of the applicant’s apprehension by the police, the legal basis of his detention prior to the court ruling of 7 July 2009, the reasoning of the aforementioned ruling, and the legal basis for the applicant’s detention thereafter.

8.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

9.  Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

The Government are requested to submit copies of all the documents regarding the applicant’s detention and the criminal proceedings against him. They are also requested to submit all documents regarding the conditions of his detention, his health condition and the medical care provided to him. Lastly, the Government should submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant, as well as copies of all related documents.