GARUMOV v. UKRAINE - 70043/17 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2019] ECHR 426 (06 June 2019)

In the case of Garumov v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Yonko Grozev , President,
Gabriele Kucsko-Stadlmayer ,
Lado Chanturia , judges,
and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 7 May 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 70043/17) 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 Russian national, Mr Magomedganipa Gadzhiyevych Garumov ("the applicant"), on 26 September 2017.

2. The applicant was represented by Mr V.V. Rakov and Mr R.N. Rozmetov , lawyers practising in Kyiv. The Ukrainian Government ("the Government") were represented by their Agent, Mr I. Lishchyna .

3 . The applicant complained, inter alia , of a lack of medical treatment in detention and of the authorities ' failure to give relevant and sufficient reasons to justify his pre-trial detention.

4. On 26 September 2017 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, so that he could be transferred to a specialised medical facility for further neurological treatment. The Court rejected that request on 19 March 2018 . The application was granted priority under Rule 41 of the Rules of Court.

5. On the same day the above complaints (see paragraph 3 above) were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. Further to the notification under Article 36 § 1 of the Convention, the Russian Government informed the Court that they did not wish to exercise their right to intervene in the present case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1967 and is currently detained in the Kyiv pre-trial detention centre ("the SIZO").

A. The applicant ' s arrest and detention

7. On 1 June 2017 the applicant was arrested on suspicion of kidnapping.

8 . On 2 June 2017 the Pecherskyy District Court of Kyiv ("the District Court") ordered the applicant ' s pre-trial detention. The court agreed with the reasons for the applicant ' s detention which had been advanced by the investigator, but did not mention them in its decision. The decision merely stated that the reasons advanced by the investigator were sufficient for the court to conclude that the applicant might try to abscond from justice, obstruct the investigation, and influence the other suspect or witnesses in the proceedings. No further details were provided by the court. On 3 August 2017 the decision was upheld by the Court of Appeal .

9 . On 6 June 2017 the applicant was placed in the Kyiv SIZO.

10 . In the course of the pre-trial investigation the applicant ' s detention was extended a number of times, including on 27 July, 22 and 28 September, and 15 and 29 November 2017. The reasons for extending his detention were the severity of the possible sanction, the need to take additional investigative and procedural steps, and the fact that the existing risks [of the applicant ' s absconding or obstructing the criminal proceedings] were still relevant. No further details were provided by the courts. On the last mentioned date the court maintained non-custodial preventive measures in respect of two co-accused .

11 . On 13 December 2017 the Kagarlyk Court of Kyiv Region ("the trial court") committed the applicant for trial. The trial court maintained the custodial preventive measure in respect of the applicant, reiterating, without providing details, the same reasons which had been mentioned at the pre - trial stage, namely that there was a reasonable suspicion that the applicant had committed the said crime; if released he might attempt to abscond from justice; the statutory penalty for the crime was up to ten years ' imprisonment along with confiscation of all property; and, being a foreign national, he had no permanent place of residence in Ukraine and was unemployed.

12. During the trial the applicant ' s detention was again extended a number of times, including on 9 February, 28 March, 24 April, 13 June, 11 September, 7 November 2018 and 11 February 2019. The reasons for extending his detention were similar to those mentioned in paragraphs 8 , 10 and 11 above. No further details were provided by the courts.

13. In the decisions taken on 22 September and 13 December 2017, 28 March, 13 June and 11 September 2018, and 7 November and 11 February 2019, the courts also referred to the fact that the applicant was a national of the Russian Federation, and might therefore escape justice abroad as he had not handed in his passport, had no permanent place of residence, no social ties in Ukraine and was unemployed. No further details or reasons for the relevant decision were provided by the courts in that regard.

14 . In the course of the proceedings in respect of the extension of his detention, on 28 September and 13 December 2017, 28 March, 24 April, 13 June, 11 September, 7 November 2018, and 11 February 2019 the applicant raised objections. He argued, inter alia , that his state of health was unsatisfactory as he had recently suffered a stroke, that he had a stable family relationship, and that he had not attempted to abscond from justice.

15 . In particular, on 13 December 2017, 7 February, 21 March, and 23 April 2018 the applicant applied to the court to change the preventive measure for house arrest. He stated that he suffered from cardiac and neurological conditions and that his state of health required treatment in a specialised medical facility outside the SIZO; that he had a permanent residence permit issued by the Ukrainian authorities; and that he had had a civil partner and two children born in Ukraine. He further stated that a non - custodial preventive measure had been applied to his two co-accused in the course of the pre-trial investigation, and the fact that they were at liberty had not obstructed the investigation. It appears from the relevant decisions that the courts did not address the above-mentioned arguments.

16. According to the available information, between September and November 2017 an ambulance was called ten times to provide the applicant with urgent treatment or to take him outside the SIZO. Additionally, on hearing days, notably on 13 December 2017, 16 January, 9 February, 24 April and 8 May 2018, he was taken to the trial court by ambulance in view of his poor health.

17. According to the available information, the applicant is currently detained in the Kyiv SIZO pending examination of his case by the trial court.

B. Medical treatment provided to the applicant while in detention

18. According to the Government, when he was placed in the SIZO (see paragraph 9 above), the applicant did not raise any health complaints.

19. Since 6 July 2017 the applicant has been treated in the SIZO medical unit in connection with, inter alia , ischemic heart disease and second - stage hypertension .

20 . On 3 September 2017 an ambulance took the applicant to the Kyiv Medical Emergency Hospital ("the Emergency Hospital") where he was diagnosed with a haemorrhagic stroke and third - stage hypertension. He was provided with urgent treatment.

21. On 8 September 2017 the applicant was discharged from the hospital and returned to the SIZO with medical prescriptions and recommendations for further treatment. His medical condition was assessed as being of medium gravity.

22 . On 13 September 2017 the applicant consulted a neurologist and a cardiologist, who prescribed medication in view of his diagnosis (see paragraph 20 above) and recommended further in-patient treatment at a medical facility specialising in neurology. It was also recommended that he undergo a magnetic resonance tomography ("MRT"), massages and rehabilitation exercises. In a further recommendation of 2 October 2017 the neurologist stated that a lack of adequate medical treatment could result in another intracerebral hemorrhage and disability. The neurologist also stated that by 13 September 2017 the applicant had needed further examinations and treatment at a medical facility specialising in neurology, in order to specify the further treatment to be prescribed.

23. In the course of the court hearing on 21 September 2017 the applicant felt unwell. An ambulance transported him to the Emergency Hospital where he consulted a neurosurgeon and a therapist, and underwent a spiral computed tomography (CT) scan of the brain. He was recommended further supervision by a neurologist and sent back to the SIZO.

24. On the same day the District Court ordered the Kyiv SIZO administration to ensure that the applicant underwent an urgent forensic examination. The parties did not inform the Court whether that order had been implemented.

25. On 29 September and 10 October 2017 the applicant consulted a neurologist, who prescribed him medication and massage of the limbs of the left side of the body.

26 . On 29 December 2017 the SIZO administration informed the applicant ' s defence lawyer that the SIZO had no cardiologist or rehabilitation physician on its staff. An MRT scanner was not available either. Medical treatment for those suffering from cardiac diseases was provided by a therapist. According to the case-file material, an MRT scan was eventually carried out on 15 January 2018 in an outside facility, allegedly at the expense of the applicant ' s wife.

27. On 3 January 2018 the applicant ' s defence lawyer requested the Kyiv Bureau for Forensic Medical Examinations to carry out a forensic examination with a view to establishing, inter alia , what medical conditions the applicant was suffering from and whether he required medical treatment.

28 . In the course the above-mentioned examination the forensic experts studied the applicant ' s medical file and examined him in person. In their opinion of 2 February 2018 the forensic experts concluded that the applicant was suffering from cerebrovascular dis ease, acute stroke (3 September 2017), discirculatory encephalopathy, and third-degree hypertension. From his symptoms at the time of examination it was evident that he had had repeated acute strokes and that further examination and in-patient treatment at a medical facility specialising in neurology were imperative.

29 . On 9 February and 6 March 2018 the SIZO administration replied to the defence lawyer ' s applications for the applicant ' s transfer to a specialised medical facility, informing him that such a transfer would be possible if the relevant documentation confirming the readiness of the medical facility in question to admit the applicant for treatment, were presented.

30. On 8 May 2018 the applicant ' s defence lawyer applied to the trial court, seeking the applicant ' s transfer to a medical facility specialising in neurology with a view to his further examination and in-patient treatment. On the same day the trial court allowed that application and ordered the applicant ' s transfer to a relevant medical facility of the applicant ' s choice and at his or his relatives ' expense.

31 . On 11 May 2018 the SIZO authorities informed the applicant ' s defence lawyer that his client ' s transfer for treatment would be possible if he presented relevant documentation confirming the readiness of the medical facility in question to admit the applicant for treatment. The lawyer was further informed that the applicant was being provided with symptomatic treatment at the SIZO.

32 . On 4 June 2018 the applicant was transferred to Kyiv City Hospital no. 4 for treatment. A number of tests and examinations were carried out and medication was prescribed. On 22 June 2018 he was discharged and sent back to the SIZO with an insignificant improvement in his health.

33 . On 5 July 2018 the applicant was recognised as a person suffering from a category 2 disability. The second category is the intermediary one, the first constituting the severest level of disability and the third the least severe. The applicant was also recommended rehabilitation treatment.

34. The parties did not inform the Court about the treatment the applicant had been provided with after July 2018.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

35. The applicant complained that no appropriate medical assistance had been provided to him while in detention. He relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

37. The applicant complained that he had not been given access to appropriate medical assistance while detained. The Government contended that they had taken all possible measures to provide the applicant with appropriate medical assistance and treatment in full compliance with the requirements of Article 3 of the Convention.

38. The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03and 13413/04, §§ 112 - 22, 29 November 2007); Ukhan v. Ukraine (no. 30628/02, §§ 77 - 83, 18 December 2008); Petukhov v. Ukraine (no. 43374/02, §§ 91 - 98, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 70 - 75, 22 October 2015).

39. Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see paragraph 20 above) was serious enough to affect his everyday functioning and even to pose a risk for his life. Therefore, he could have experienced considerable anxiety regarding whether the medical care provided to him was adequate.

40. The Court further notes that soon after having had a stroke, the applicant was recommended in-patient treatment at a medical facility specialising in neurology. His placement in such a facility was recommended on account of the need to carry out further examinations and treatment (see paragraph 22 above). It appears that that recommendation was not implemented by the SIZO.

41. The Court observes that the recommendation that the applicant undergo an MRT scan and rehabilitation treatment (see paragraph 22 above) was not implemented in good time. In this connection, the Court notes that the authorities did not provide any explanation for the delay in performing an MRT scan, having acknowledged that the SIZO medical unit had not been sufficiently equipped and staffed to address the applicant ' s neurological illness (see paragraph 26 above). An MRT scan was eventually carried out four months after it had been prescribed (idem).

42. Moreover, the Court cannot but note that the repeated recommendation for the applicant ' s further examination and in-patient treatment at a medical facility specialising in neurology - after the forensic experts had concluded that the applicant had suffered another severe stroke (see paragraph 28 above), was not taken seriously by the authorities. It appears that they simply shifted the burden - of placing the applicant in a specialised medical facility - onto the a pplicant and his relatives (see paragraphs 29 - 31 above). Instead, they continued providing him with symptomatic treatment at the SIZO.

43. Lastly, it took the applicant four months to arrange such a transfer (see paragraph 32 above). Against the background the Court cannot exclude that the applicant ' s disability (see paragraph 33 above) could have been the result of the authorities ' reluctance to take all the steps they were reasonably expected to take.

44. The Court nevertheless observes that the applicant was not entirely left without medical care while in detention. He received certain medication and underwent a number of examinations. However, the Court cannot subscribe to the Government ' s argument that the level of medical care provided to him was sufficient. Although the Government provided a substantial amount of documentary information concerning the treatment provided to the applicant, it did not contain evidence proving that the prescribed medication had been actually administered to him throughout his detention. It would appear from several barely legible documents in the case file that some medication had been administered to the applicant between 6 July and 10 October 2017.

45. The Court reiterates in this connection that it is for the Government to provide credible and convincing evidence that an applicant received comprehensive and adequate medical care in detention (see, among others, Savinov v. Ukraine , no. 5212/13, § 50, 22 October 2015).

46. In the light of the foregoing, the Court considers that the authorities ' unjustified delays in providing the applicant with medical treatment after his medical condition had been established, their failure to secure his placement in a hospital for further examination and in-patient treatment, and the subsequent deterioration in his health are sufficient indications of a serious failing on the part of the respondent State to provide him with the appropriate medical care while in detention. This amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

47. The applicant complained that the domestic courts ' decisions on his detention were arbitrary and lacked reasoning. He relied on Article 5 §§ 1 (c), 3 and 4 of the Convention.

48. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10and 22768/12 , §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicant ' s complaints, the Court decides to examine them under Article 5 § 3 of the Convention.

49. The relevant part of Article 5 reads as follows:

"... 3. Everyone arrested or detained in accordance w ith the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ..."

A. Admissibility

50. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

51. The applicant submitted that his detention had not been lawful and justified, as the courts had failed to give relevant and sufficient reasons for it. He further stated that he had a permanent residence permit issued by the Ukrainian authorities, a stable family relationship and two children born in Ukraine. Lastly, he stressed that there had been no risks of his absconding from justice, and that the authorities had never requested that he hand in his passport.

52. The Government submitted that the applicant ' s detention had been lawful within the meaning of the domestic law and had been justified by the reasonable suspicion that he had committed a crime. They added that there had been "adequate" and "sufficient" grounds for the applicant ' s continued detention. They thus considered that his detention had been in compliance with Article 5 of the Convention.

53. The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07 , §§ 84-91 and 102, 5 July 2016).

54 . The Court observes that contrary to the Government ' s argument, the District Court ' s decision of 2 June 2017 did not contain clear and precise reasons for the applicant ' s detention but simply referred to the investigator ' s submissions, without any examination of the plausibility of the grounds invoked by the latter (see paragraph 8 above).

55. The Court further observes that the seriousness of the charges against the applicant and the risk of his absconding or interfering with the investigation were mentioned in the initial order for his detention (see idem). However, that reasoning did not evolve with the passage of time. Moreover, when committing the applicant for trial approximately six months later, the domestic court reiterated, without providing details, the same reasons which had been given at the pre-trial stage (see paragraph 11 above).

56 . The Court also notes that the domestic courts consistently failed to consider and reply to the applicant ' s arguments that his state of health had been deteriorating and that he required special medical treatment, that he had a stable family relationship, and that he had not absconded from justice (see paragraphs 14 and 15 above). For instance, the courts failed to provide any explanation as to how the applicant ' s release would hamper the investigation and trial, taking into account (a) his state of health and (b) the fact that a non-custodial preventive measure had been applied to his two co - accused at least as from 29 November 2017 (see paragraph 10 above).

57. The Court further notes that the authorities did not comment on the applicant ' s argument that he had never been requested to hand in his passport.

58. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant ' s detention (see, for example, Kharchenko v. Ukraine , no. 40107/02, §§ 80-81 and 99, 10 February 2011 and Ignatov v. Ukraine , no. 40583/15, § 41, 15 December 2016).

59. Having regard to the above, the Court considers that by failing to address the specific facts of the applicant ' s situation and by relying essentially and routinely on the seriousness of the charges against him, the authorities extended the applicant ' s detention pending trial on grounds which cannot be regarded as "sufficient" and "relevant".

60 . There has accordingly been a violation of Article 5 § 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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."

62. The applicant claimed 874 euros (EUR) in respect of pecuniary damage, which he had incurred in order to purchase medicines and undergo a forensic medical examination. He also claimed EUR 70,000 in respect of non-pecuniary damage.

63. The Government considered the claims unsubstantiated and excessive.

64. The Court finds that the applicant ' s claims in respect of pecuniary damage are not substantiated; it therefore rejects them. On the other hand, it awards the applicant EUR 10,000 in respect of non - pecuniary damage, plus any tax that may be chargeable.

65. The applicant did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head.

66. 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 applicant ' s complaints under Article 3 of the Convention concerning the lack of access to appropriate medical assistance in detention, and his complaints under Article 5 § 3 of the Convention admissible;

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

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non - pecuniary damage;

(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;

5. Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 6 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GARUMOV v. UKRAINE - 70043/17 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2019] ECHR 426 (06 June 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/426.html Cite as: [2019] ECHR 426, ECLI:CE:ECHR:2019:0606JUD007004317, CE:ECHR:2019:0606JUD007004317