FIFTH SECTION

CASE OF YERMOLENKO v. UKRAINE

(Application no. 49218/10)

JUDGMENT

STRASBOURG

15 November 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Yermolenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Dean Spielmann, President,
	Mark Villiger,
	Karel Jungwiert,
	Boštjan M. Zupančič,
	Angelika Nußberger,
	Paul Lemmens, judges,
	Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49218/10) 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 Grygoriy Mykolayovych Yermolenko (“the applicant”), on 10 August 2010.
2.  The applicant was represented by Mr O. Morozov, a lawyer practising in Sumy, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine.
3.  The applicant alleged, in particular, that he did not receive adequate medical treatment in detention and that his detention was not compatible with his state of health, in breach of Article 3 of the Convention.
4.  On 10 October 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1958 and is currently detained in Sumy no. 116 Correctional Colony.
6.  At the material time the applicant was a deputy head of the Sumy District State Administration. He has been suffering from chronic lymphocytic leukaemia since 2002 and underwent several courses of chemotherapy in 2007-09.
7.  On 3 June 2009 criminal proceedings for corruption were instituted against the applicant. On the same day he was arrested and detained for eight days. According to the applicant, on the first day of his detention he was not given any water or food, and was not provided with any medical assistance.
8.  On 22 June 2009 Sumy Regional Hospital informed the applicant’s lawyer B. that the applicant had been in the hospital on five different occasions between 15 March 2007 and 22 June 2009. He was suffering from chronic lymphocytic leukaemia, which fell into the category of terminal illness, so only maintenance treatment in a specialised haematology department was possible for him in addition to permanent medication while not in hospital.
9.  Between 28 July and 13 August 2009 the applicant was in Sumy Regional Hospital. He was diagnosed with chronic lymphocytic leukaemia, atherosclerotic cardiosclerosis, hypertension, chronic cholecystitis, chronic pancreatitis and cysts on both kidneys.
10.  On 8 September 2009 the applicant was recorded as falling into the third category of disability (the mildest) on account of his condition. In accordance with an Instruction on Assessment of Disability Levels, adopted by the Ministry of Health Protection of Ukraine on 7 April 2004, in force at the material time, the third category of disability included people with constant functional body disorders of moderate gravity, which caused moderate limitations of daily activity.
11.  On 23 December 2009 the Sumy Regional Court of Appeal convicted the applicant of corruption (receiving 100,000 Ukrainian hryvnias (UAH) (at the material time around 8,700 euros (EUR)) in return for allocation of 2.8 hectares of plots of land) and sentenced him to seven years’ imprisonment, banned him from holding administrative positions, and ordered his property to be confiscated. The court noted that the applicant’s state of health had been taken into consideration when he was sentenced. In these proceedings the applicant was represented by lawyers B. and D.
12.  On the same day the applicant was placed in the Sumy Pre-Trial Detention Centre.
13.  The applicant appealed against this sentence. In his appeal the applicant’s lawyer, M., mentioned that the applicant needed kidney surgery and was suffering from chronic lymphocytic leukaemia. He believed that these were among the conditions which could serve as a basis for release. Therefore, he stated that the applicant’s sentence amounts to “the death penalty”.
14.  On 25 March 2010 the Supreme Court of Ukraine examined the case on the facts and points of law and upheld the applicant’s sentence without expressly addressing the issue of his medical condition. However, it was indicated that the lower court had correctly assessed the mitigating circumstances when sentencing the applicant. From the documents submitted by the applicant it is unclear what specific medical evidence was presented before the national courts.
15.  On 7 April 2010 the applicant was transferred to Sumy no. 116 Correctional Colony.
16.  On 17 April 2010 the applicant was placed in the medical wing of the colony. He was diagnosed with atherosclerotic cardiosclerosis, chronic cholecystopancreatitis, kidney cysts and chronic lymphocytic leukaemia (Stages III-IV), and given cardio and antispasmodic medication.
17.  On 26 April 2010 the applicant was examined by a haematologist of a regional hospital and was recommended to undergo chemotherapy.
18.  Between 22 June and 7 July 2010 the applicant underwent treatment in the Temnivska no. 100 Correctional Colony hospital. He was diagnosed with chronic lymphocytic leukaemia, atherosclerotic cardiosclerosis, hypertension, chronic cholecystitis, chronic pancreatitis and obesity. It was recommended that he continue to be treated in the haematology department where he was serving his sentence. It was further noted that, if necessary, the question of the applicant’s release should be decided after the applicant had had a full examination in a specialist clinic.
19.  On 23 July 2010 the Head of the Sumy Regional Department of Execution of Sentences requested the Head of the Health Department of Sumy Regional State Administration to arrange for the applicant to be examined by a haematologist and a chemotherapist at Sumy Regional Hospital. In reply he was informed that the applicant would be placed in the haematology wing of Sumy Regional Hospital.
20.  On 26 August 2010 the applicant was examined by Professor T. of the Institute of Haematology and Transfusiology of the Academy of Medical Science of Ukraine. It was noted that the applicant’s condition started to deteriorate from the beginning of 2009. He underwent five courses of chemotherapy, which had a positive but temporary effect. At the present moment the applicant’s state of health was deteriorating. He was experiencing weakness, faintness, abdominal pain, loss of appetite and loss of weight. The applicant was diagnosed with chronic lymphocytic leukaemia (IV cancerous stage), which required immunochemotherapy to be performed in a haematology unit.
21.  According to a notice issued on 23 September 2010 by Sumy Regional Hospital, the applicant needed immunochemotherapy in hospital in addition to other treatment “the absence of which may lead to his death”.
22.  On 28 October 2010 a letter similar to the one of 23 July 2010 was sent to the Head of the Health Department of Sumy Regional State Administration. The department was further requested to “submit information about how the sentence may be served, in view of his state of health” and whether it would be possible for him to be transferred to a medical institution of the Department of Execution of Sentences.
23.  In reply the Head of Sumy Regional Department of Execution of Sentences was informed that on 25 October 2010 the applicant was examined by two haematologists, a cardiologist and a urologist from Sumy Regional Hospital. He underwent an ultrasonography, an electrocardiogram and had a blood test. The applicant was diagnosed with chronic lymphocytic leukaemia (IV cancerous stage), hepatolienomegaly (enlargement of the liver), toxic syndrome, ischaemic heart disease, cardiosclerosis, hypertension, heart failure, and cysts on both kidneys. The doctors’ commission concluded that the applicant required immunochemotherapy in Sumy Regional Hospital and that the kidney cysts should be operated on. It was considered impossible to transport the applicant to hospitals of the State Department of Execution of Sentences.
24.  On 16 and 30 November 2010 the applicant refused to be transported to the oncology department of the Lviv Pre-Trial Detention Centre because it was a long way away from the colony.
25.  Between 30 November and 13 December 2010 the applicant underwent chemotherapy in Sumy Regional Hospital.
26.  Between 15 and 24 January 2011 the applicant was in the medical wing of the colony. He had been diagnosed with acute otitis.
27.  Following requests by the applicant’s wife for his release, on 4 February 2011 the Sumy Regional Prosecutor wrote to the Head of the Sumy no. 116 Correctional Colony and the Head of the Health Department of the Sumy Regional State Administration requesting them to set up a medical panel to examine and assess the applicant by 10 February 2011 in order to decide whether there were medical grounds for the applicant’s release. The following questions were to be put to the panel: 1) What conditions was the applicant suffering from? At what stage of development were these conditions? 2) Had the applicant been diagnosed with any condition which appeared on the list of conditions for release (see paragraph 34 below)?
28.  On 8-9 February 2011 the applicant underwent a comprehensive examination in Sumy Regional Hospital by a panel of six doctors which included two deputy heads of the hospital, the heads of the haematology and urology departments and other specialists. The applicant was diagnosed with chronic lymphoid leukaemia (Stage IV), ischaemia, hypertension, large cysts on both kidneys, and other conditions. The commission concluded that the applicant did not have health problems which could serve as a ground for request for release. In particular, the applicant’s diagnosis did not fully coincide with the medical condition indicated in the List, since the applicant did not have anaemia, thrombocytopenia or constant recurring infections. According to the List, chronic lymphoid leukaemia could serve as a ground for release only if complicated by those conditions.
29.  On 6 May 2011 the applicant was again examined by a haematologist. He had a complete blood count, biochemical blood assay, brain computed tomography, ultrasonic examinations of various internal organs, electrocardiogram and other procedures. On 10 May 2011 the applicant was assessed by a medical panel, which consisted of ten doctors, including the deputy head of the Sumy Regional Hospital, deputy heads of various hospital departments, and professors from Sumy Medical University. The panel concluded that none of the applicant’s health problems was severe enough to serve as a basis for his release. It was also concluded that the applicant’s condition was unchanged, however, the results of his analysis showed some improvement.
30.  On 20 September 2011 the applicant was placed in the surgical wing of the Correctional Colony No. 85 Hospital. He was diagnosed with unilocular cysts on both kidneys.
31.  Further information about the applicant’s condition is not available.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
32.  According to part 2 of Article 84 of the Criminal Code of Ukraine a person who, after committing a crime or after being sentenced, contracts a serious illness which precludes him or her from serving a sentence, may be released from serving that sentence.
33.  According to part 5 of Article 154 of the Criminal Enforcement Code of Ukraine, in such a case the head of the prison administration lodges a request with a court, attaching to it the finding to this effect of a special medical panel.
34.  A list of conditions (“the List”) which can serve as a basis for such a request was adopted by joint decree no. 3/6 of 18 January 2000 by the State Department on Enforcement of Sentences and the Ministry of Health of Ukraine. In particular, according to point 4.2.5 of the list, chronic lymphoid leukaemia complicated by anaemia, thrombocytopenia and constant recurring infections could serve as a basis for release.
35.  On 3 December 1997 the Supreme Court of Ukraine amended its plenary meeting decision of 28 September 1973 “On judicial practice in relation to release of detainees who have contracted serious illnesses”. The Supreme Court concluded that a person should be released if further detention would endanger the person’s life and might lead to serious deterioration of their health. This applies also to those who were seriously ill before conviction but whose illness has progressed while they were serving their sentence and has acquired characteristics mentioned in the List. The courts should adopt an individual approach in every case and take into consideration not only medical conclusions but also the seriousness of the offence they have committed, the behaviour of the sentenced person, and other circumstances, as appropriate. The court decision should be motivated and should contain detailed reasoning for all conclusions reached by the court.
36.  On 13 June 2000 the Supreme Court of Ukraine, in the case of X., noted that according to the List, a serious illness might serve as a basis for release only when it had reached a certain stage. The court decision in this respect must indicate what particular serious illnesses the person is suffering from and whether these illnesses make the person’s continued imprisonment impossible.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF LACK OF ADEQUATE MEDICAL ASSISTANCE AND COMPATIBILITY OF THE APPLICANT’S STATE OF HEALTH WITH DETENTION
37.  The applicant complained under Article 3 of the Convention that he was not provided with the necessary medical assistance and that his state of health was not compatible with detention. The Article reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
38.  The Government did not submit any observations as to the admissibility of these complaints.
39.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
(a)  The applicant
40.  The applicant’s observations are mainly limited to his disagreement with his conviction. In particular, the applicant challenged the assessment of evidence in his case by the domestic courts.
41.  The applicant, however, believed that his leukaemia had progressed to stage IV and he had become terminal because his conviction and detention were unlawful, and because he had not received appropriate medical treatment and nutrition. In particular, on 26 April 2010 he was diagnosed with stage III and on 3 August 2010 with stage IV of leukaemia. Moreover, according to the applicant, he had to pay for his immunochemotherapy in 2010 himself.
(b)  The Government
42.  The Government stated that the applicant received appropriate medical assistance and treatment while in detention.
43.  The Government maintained that the applicant had been suffering from the conditions in question before he had been placed in detention. His state of health deteriorated because the leukaemia he is suffering from had reached stage IV. This is a terminal condition. The applicant was diagnosed with it as early as 2002 and his state of health has been deteriorating since.
44.  The Government also noted that according to Article 116 part 5 of the Criminal Enforcement Code, the applicant could have requested treatment in civilian hospitals at his own expense, however there is no evidence that he ever did so.
45.  The Government further contended that given the medical assistance the applicant received in detention his detention could not be considered contrary to Article 3 of the Convention.
46.  The national law provides for the possibility of release from serving a sentence in the event of serious illness. On 8-9 February 2011 the applicant was assessed by a medical panel and it was established that his diagnosis did not fully coincide with the List of diagnoses which could serve as a basis for release.
47.  Therefore, the Government stated that the applicant was indeed suffering from a serious illness, however, he had been receiving appropriate medical assistance and his illness was not one which could necessitate his release on health grounds. In the event of such grounds appearing the applicant would be released.
2.  The Court’s assessment
48.  The Court has emphasised on a number of occasions that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).
49.  However, Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds. Having examined a number of cases concerning detention of elderly and/or seriously ill persons, the Court considered that only in exceptional cases may Article 3 require the release of a detainee, in particular where his state of health is absolutely incompatible with detention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004).
50.  In this respect the Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, McGlinchey and Others v. the United Kingdom, no. 50390/99, § 45, ECHR 2003‑V).
51.  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).
52.  In addition the Court attached particular weight to the existence at the national level of a procedure envisaging the possibility of release in the event of incompatibility of the applicant’s health with detention. Such a procedure should provide sufficient guarantees to ensure the protection of prisoners’ health and well-being, which States must reconcile with the legitimate requirements of a custodial sentence (see Mouisel v. France, cited above, § 44).
53.  Turning to the present case, the Court notes that the applicant was diagnosed with several serious illnesses which require regular medical care. Since 2002 he has been suffering from chronic lymphocytic leukaemia and his condition has been deteriorating. According to a medical conclusion of 22 June 2009, the applicant needed regular maintenance treatment in a specialised haematology clinic and constant treatment. He is also suffering from other serious diseases.
54.  The Court notes that in detention the applicant has been regularly examined by detention facility doctors and by specialists from outside hospitals. He has also been receiving treatment.
55.  However, in April 2010 the applicant was diagnosed with stage III leukaemia and it was recommended that he undergo chemotherapy. Despite the conclusion of 23 September 2010 that failure to carry out this programme could result in the applicant’s death, it was only at the end of November 2010, six months after the initial recommendation, that the chemotherapy was finally performed.
56.  The Court further notes that the applicant had been diagnosed with kidney cysts and in October 2010 surgery was recommended. However, the applicant was referred to a surgical unit only a year later and there is no information as to whether the surgery has now taken place.
57.  Given that the applicant’s condition appears to be serious and the failure to perform the chemotherapy in timely fashion could result in rapid deterioration of the applicant’s health and a fatal outcome, the Court cannot conclude that the applicant has had adequate medical assistance in detention.
58.  The Court, however, indicates that failure in the past on the part of the national authorities to perform crucial medical procedures on the applicant promptly does not imply that the applicant should automatically be released on health grounds. The Court notes that the applicant had failed to provide specific details concerning his everyday conditions of detention and treatment, and there is no evidence that he is detained in conditions which could be considered inhuman or degrading (compare Farbtuhs v. Latvia, cited above, §§ 58-60).
59.  The Court, nevertheless, considers that detention per se inevitably affects prisoners suffering from serious disorders. In particular, the Court does not lose sight of the fact that the national authorities considered the applicant’s condition serious enough to raise at the national level the question of compatibility of the applicant’s state of health with his detention. Although the applicant has no opportunity under the national law to bring the issue directly before the national courts, when the applicant’s wife lodged requests on his behalf the prosecutor ordered a special medical panel to be set up to assess whether there were medical grounds for the applicant’s release.
60.  In this respect, the Court reiterates that it cannot substitute its point of view for that of the national authorities, especially when the national authorities have complied with their obligation to protect the physical integrity of the applicant by giving him appropriate medical assistance (see Sakkopoulos v. Greece, no. 61828/00, §44, 15 January 2004). However, in the present case the issue in question has never come before the national courts, which according to the domestic practice (see paragraph 35 above) had to base their decisions not only on medical conclusions but on other relevant circumstances. Furthermore, the medical panel was requested to deal with a specific question only, namely whether the applicant’s health problems included any of the diagnoses from the List. No assessment of whether the applicant’s state of health, given his serious condition, is compatible with detention, has ever been asked for.
61.  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.
62.  In the Court’s view such a practice does not provide sufficient guarantees to ensure the protection of prisoners’ health and well-being.
63.  The Court finds that, given the failure to perform vital medical procedures in timely fashion and the inadequate assessment of the compatibility of the applicant’s state of health with his detention, there is a breach of Article 3 of the Convention in the present case.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
64.  The applicant complained, citing Article 2 of the Convention that he was suffering from blood cancer and needed kidney surgery; however, given that he was not receiving the necessary medical assistance in detention, by sentencing him to imprisonment the national courts had “condemned him to death”.
65.  The applicant further complained under Article 3 of the Convention that when he had been questioned in the police station on 3-4 June 2009 he had not been given any food or water, or the medication he needed.
66.  The applicant also complained that his prison sentence was unlawful and cited Article 5 §§ 1, 4 and 5 of the Convention.
67.  The applicant lastly complained under Articles 6 § 1, 13 and 17 of the Convention that his trial and conviction were unfair, that he was innocent, and that the courts had assessed the evidence in his case incorrectly.
68.  Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
69.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
70.  Article 41 of the Convention provides:
“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.”
A.  Damage
71.  In respect of pecuniary damage the applicant claimed UAH 77,000 in legal costs during the investigation and trial, UAH 16,588 for food, UAH 3,535 for medication, UAH 43,645 for future food and medication needs, 21,600 UAH for expenses related to visits to the applicant by his family, including future visits, and UAH 60,512.58 as the value of confiscated property and lost income.
72.  The applicant further claimed UAH 1,000,000 in compensation for non-pecuniary damage.
73.  The Government noted that there was no causal link between the violations complained of and the damages claimed. Moreover, the applicant claimed possible future damages.
74.  The Court reiterates that there must be a clear causal connection between the damage claimed by an applicant and the violation of the Convention. In the present case the finding of a violation of Article 3 of the Convention in respect of lack of adequate medical assistance to the applicant was caused by the failure to perform the chemotherapy and the kidney surgery needed by the applicant in timely fashion. There is no evidence that food and medication costs were in any way necessitated by the failure of the national authorities to provide the applicant with adequate everyday care. Similarly, there is no connection between the violation found and the costs related to the applicant’s family’s visits and confiscation of his property in accordance with the lawful sentence imposed on him.
75.  The Court thus does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, deciding on an equitable basis, it awards the applicant EUR 7,500 in respect of non-pecuniary damage.
B.  Costs and expenses
76.  The applicant also claimed UAH 77,000 for costs and expenses incurred before the domestic courts.
77.  The Government submitted that this claim did not concern the applicant’s representation before this Court.
78.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim.
C.  Default interest
79.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 3 of the Convention concerning the lack of adequate medical assistance in detention and compatibility of the applicant’s state of health with his detention admissible and the remainder of the application inadmissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Dean Spielmann
	Registrar	President