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Фабула судового акта: Заявник, А.Х.Е Вагапов (далі – Заявник), звернувся до ЄСПЛ зі скаргою на порушення Україною статті 3 Конвенції у зв`язку з неналежними умовами тримання під вартою в Сімферопольському СІЗО та ненаданням адекватної медичної допомоги, а також на порушення статті 5 Конвенції у зв`язку зі свавільним поміщенням Заявника під варту.
Заявник має інвалідність внаслідок вогнепального поранення в спинний мозок і пересувається на візку.
За вчинення декількох злочинів Заявника було засуджено до трьох років позбавлення волі (умовно). Апеляційний суд скасував вирок, направив справу на дорозслідування, та повторно взяв Заявника під варту з огляду на характер і важкість злочинів, у вчиненні яких він підозрювався. Під час нового розгляду Заявника було засуджено до трьох років позбавлення волі та залишено під вартою до набрання вироком законної сили. Суди апеляційної і касаційної інстанції залишили вказане рішення без змін, Заявник відбув покарання у повному обсязі.
Під час перебування у СІЗО Заявника неодноразово оглядали лікарі та призначали лікування у зв`язку з різноманітними захворюваннями, від якого Заявник відмовлявся. ЄСПЛ наголосив, що держава не може нести відповідальність за негативні наслідки, спричинені відмовою Заявника прийняти запропоноване йому лікування, з огляду на зробив висновок, що медична допомога, доступна Заявнику, була адекватною, порушення статті 3 Конвенції у зв`язку з цим не відбулось.
Проте, ЄСПЛ встановив порушення статті 3 Конвенції у зв`язку з неналежними умовами тримання Заявника під вартою в Сімферопольському СІЗО. ЄСПЛ підкреслив, що у випадку поміщення під варту і тримання під вартою особи з інвалідністю, органи влади повинні виявляти особливу обережність при забезпеченні таких умов, які відповідають особливим потребам, зумовленим інвалідністю.
Заявник стверджував, що оскільки СІЗО не було пристосоване для пересування на інвалідному візку, задоволення його основних потреб (використання туалету, прийняття душу або прийом їжі) цілком залежало від інших осіб. Через відсутність відповідних пристосувань він зазнавав опіків гарячою водою, переломів; не бував на свіжому повітрі та не міг зустрічатись із захисником. ЄСПЛ визнав правдоподібними твердження Заявника про нездатність задовольнити свої базові потреби у вказаних умовах, що завдало Заявнику душевні і фізичні страждання.
ЄСПЛ також встановив порушення пункту 1 статті 5 Конвенції, оскільки рішення апеляційного суду про взяття Заявника під варту було обґрунтоване лише такими загальними підставами як характер і важкість злочинів. Разом з цим, суд не вказав, які саме ризики виправдовують тримання Заявника під вартою (втеча, вплив на свідків, перешкоджання розслідуванню та ін), не врахував необхідність такого запобіжного заходу як тримання під вартою в конкретних обставинах (зокрема з огляду на стан здоров`я Заявника).
Аналізуйте судовий акт: «Радоміля та інші проти Хорватії» [ВП] (Radomilja and Others v. Croatia [GC]), заяви № 37685/10 та № 22768/12
«Нештяк проти Словаччини» (Nešťák v. Slovakia), заява № 65559/01
«Ассанідзе проти Грузії» [ВП] (Assanidze v. Georgia ([GC]), заява № 71503/01
«Хайредінов проти України» (Khayredinov v. Ukraine), заява № 38717
«Фарбтух проти Латвії» (Farbtuhs v. Latvia), заява № 4672/02
FIFTH SECTION
CASE OF VAGAPOV v. UKRAINE
(Application no. 35888/11)
JUDGMENT
STRASBOURG
19 March 2020
This judgment is final but it may be subject to editorial revision.
In the case of Vagapov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to:
the application 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 Akhmed Khan Epsiyevich Vagapov (“the applicant”), on 14 June 2011;
the decision to give notice of the complaints concerning the physical conditions of the applicant’s detention, provision of medical care, and the lawfulness and reasonableness of the applicant’s detention to the Ukrainian Government (“the Government”) and to declare inadmissible the remainder of the application;
the indication by the Russian Government that they did not wish to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 25 February 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The applicant complained, under Article 3 of the Convention, that the conditions of his detention and provision of medical care to him in the Simferopol SIZO had been inadequate, and, under Article 5 §§ 1 and 3 of the Convention, that his pre-trial detention had been arbitrary and unreasonable.
THE FACTS
1. The applicant was born in 1966 and lives in Mikhaylovka. The applicant was represented by Mr A.R. Ismailov, a lawyer practising in Simferopol.
2. The Government were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2010 criminal proceedings were instituted against the applicant on suspicion of: 1) having inflicted bodily damage of light severity on a private individual, and 2) threatening a law-enforcement official in the course of the latter’s professional duties. During the course of the investigation the applicant was remanded in custody pending trial.
5. On 29 November 2010 the Zaliznychnyy District Court of Simferopol (“the District Court”) found the applicant guilty as charged and sentenced him to three years’ imprisonment suspended on probation for two years. The court released the applicant from custody subject to an undertaking not to abscond.
6. On 25 January 2011 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the sentence of 29 November 2010 and remitted the case for additional pre-trial investigation. It also remanded the applicant in custody, referring to “the seriousness and the nature of the criminal offences committed”. The applicant was detained following the court hearing.
7. On 12 March 2011 the investigation was completed and the case was referred to the District Court for trial.
8. On 23 June 2011 the District Court found the applicant guilty as charged and sentenced him to three years’ imprisonment, not suspended on probation. The court also decided to keep the applicant in detention as a preventive measure until the verdict became final.
9. On 9 August 2011 and 19 January 2012 the Crimea Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters, respectively, upheld the judgment of the District Court of 23 June 2011.
10. On 17 September 2013 the applicant was released from prison, having served his sentence in full.
11. The applicant is certified as Category 1 disabled (the most severe level of disability) on account of paraplegia of his lower limbs as a result of a gunshot wound to his spinal cord suffered in 1996. Owing to being wheelchair-bound, he developed a skin condition known as pressure sores (decubitus ulcers).
12. During the period of time from 21 July to 29 November 2010 the applicant was held in the Simferopol Pre-Trial Detention Centre (“the SIZO”) within the framework of the same criminal proceedings against him. Then he was at liberty from 29 November 2010 to 25 January 2011.
13. During his detention in 2010 the applicant underwent inpatient medical treatment in respect of aggravated chronic pyelonephritis and surgery for his pressure sores.
14. On 26 January 2011, following the decision of the Court of Appeal of 25 January 2011 ordering the applicant’s detention on remand (see paragraph 6 above), the applicant was again placed in the Simferopol SIZO. In view of his state of health, the applicant was placed in the SIZO medical unit.
15. On 12 April 2011 he had his chest X-rayed. He was diagnosed with aggravated chronic bronchitis, but refused the recommended treatment.
16. On 18 April 2011 the applicant was examined by a neurosurgeon of Saky Hospital, who reported that he had a black burn wound on three toes on his left foot and a burn blister on his right foot. The doctor recommended treatment. The applicant was also diagnosed with aggravation of the pressure sores on his buttocks, which had progressed to the purulonecrotic stage, with the formation of fistulas. The doctor recommended that the applicant be laid on his stomach, turned every two hours, and, on a daily basis, he take showers while remaining horizontal. Sitting was prohibited altogether. Lastly, the doctor held that the applicant required urgent inpatient treatment for his pressure sores in a specialised hospital environment.
17. On 19 April 2011 the applicant was examined by a burn specialist of the Simferopol City Hospital, who diagnosed him with second- and third‑degree (on a four-degree scale) boiling-water burns on both feet. The specialist concluded that the applicant did not require hospitalisation, and that his burns were considered to be superficial and they would heal by themselves within two to three weeks. An ointment was prescribed to be applied daily. The applicant refused that treatment.
18. On 4 May 2011 the applicant’s lawyer requested that the prison authorities have the applicant examined by a panel of medical specialists with a view to determining his state of health and medical needs and the possibility of meeting those needs in the SIZO.
19. On 5 May 2011 the applicant was examined by a neurosurgeon of Semashko Republic Clinical Hospital (“Semashko Hospital”), who generally confirmed the diagnoses given on 18 and 19 April, but considered that the applicant did not require hospitalisation. He was prescribed some treatment, the nature of which was not specified by the parties.
20. On the same day the applicant was also examined by a nephrologist from Semashko Hospital who diagnosed him with urethral atony (urinary incontinence) and chronic pyelonephritis. The doctor concluded that the applicant did not require hospitalisation and wrote up a prescription for his outpatient treatment. The applicant refused to follow that treatment.
21. On 6 May 2011 the applicant was examined by a surgeon of Semashko Hospital who noted that the second- and third-degree burns had failed to heal. The doctor prescribed treatment. No hospitalisation was deemed necessary.
22. On the same date the applicant was also examined by an ophthalmologist of Semashko Hospital who diagnosed him with acute conjunctivitis of both eyes and prescribed treatment.
23. Following his complaints of pain in the chest area, on 16 May 2011 an X-ray was taken of the relevant area, which showed that he had a broken rib.
24. On 19 May 2011 the applicant was examined by a trauma specialist from Simferopol City Hospital no. 6 (“Hospital no. 6”). The medical report stated that the applicant had been behaving aggressively and had not been able to explain in what circumstances he had broken his rib. Some unspecified recommendations were given as to the applicant’s treatment.
25. On 3 June 2011 the prison authorities wrote to the applicant’s lawyer that there were no reasons to have the applicant examined by a panel of medical specialists, given that he had already been examined by various doctors on many occasions.
26. On 14 July 2011 the applicant was examined by a surgeon of Hospital no. 6, who diagnosed paraproctitis (purulent inflammation of the cellular tissues surrounding the rectum) and recommended that the abscess be surgically drained in a hospital environment. The doctor made a written statement that the surgery was “contraindicated in the ... conditions pertaining in the SIZO”.
27. On 15 July 2011 the applicant was taken to Hospital no. 6. The Chief of Surgery examined him and concluded that no hospitalisation was required. As a result, the applicant was returned to the SIZO on the same day.
28. On 20 July 2011, in response to the request of the applicant’s lawyer to allow a civilian doctor to examine the applicant, the Crimea Court of Appeal wrote that that matter was within the competence of the SIZO administration.
29. On 10 August 2011 the prison authorities informed the applicant’s representative that during his detention in the SIZO the applicant had been examined by a surgeon seven times; by a neurosurgeon – twice; by a gastroenterologist – twice; by a trauma specialist – once; by a nephrologist – once; by an urologist – twice; by an ophthalmologist – once; by a therapist – once; and by a burn specialist – twice. The applicant had refused the treatment recommended by all those doctors, and forty-five reports had been drawn up in that connection.
30. On 20 September 2011 the applicant was transferred from the SIZO to serve his prison sentence.
31. According to him, while in the SIZO he was held in a cell measuring about 11 sq. m and shared by three inmates, with no space for any movement in a wheelchair. He did not specify the dates of his detention in the mentioned cell. The applicant further submitted that he had been assisted by cellmates who had carried him during his stay in the SIZO.
RELEVANT INTERNATIONAL MATERIAL
32. The relevant part of the Report to the Ukrainian Government on the visit to Ukraine carried out by the Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) from 9 to 21 December 2013 (CPT/Inf (2014) 15) reads as follows:
“120. ... The situation was no better at Simferopol SIZO. The conditions in the cells were as miserable as some thirteen years previously when the Committee had first visited this establishment. The semi-basement cells located in the establishment’s block I clearly offered unacceptable conditions in terms of state of repair, humidity, in-cell lighting and ventilation.”
THE LAW
33. The applicant complained that the conditions of his detention in the Simferopol SIZO with regard to his physical disability and the medical treatment provided to him had been inadequate. 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.”
34. The Government submitted that the applicant had been under permanent medical supervision and care while in the SIZO. He had been offered necessary treatment but had refused it on many occasions.
35. The applicant complained that he had not been provided with adequate medical care in the SIZO. He alleged, in particular, that the poor condition of his state of health had been underestimated. He also referred to the constant deterioration of his health and his having been denied access to the doctor of his choice, who had been treating him prior to his detention. The applicant did not comment on the Government’s specific arguments concerning his having refused the offered treatment, contending in general that he had required inpatient treatment but had not received it.
36. There is no dispute that the applicant had a number of medical conditions (see paragraphs 17, 19-23 above), one of them being related to his disability which required special care and treatment (see paragraph 16 above). However, as is apparent from the available material in the case file, the applicant’s conditions were regularly monitored both by the SIZO and civilian medical practitioners and relevant treatment was prescribed.
37. The Court refers to the applicant’ numerous refusals of the offered treatment (see paragraph 29 above) and notes that they do not appear to have reasonable grounds.
38. In respect of the applicant’s argument that he required inpatient treatment while in the SIZO, the Court notes that such a recommendation was indeed made in April 2011 for his pressure sores (see paragraph 16 above) and in July 2011 for paraproctitis (see paragraph 26 above). However, in the course of a number of subsequent consultations with both civilian practitioners and those from the SIZO, the recommendation for inpatient treatment was never reiterated.
39. In the light of the foregoing, the Court considers that the State cannot be held responsible for the negative effects caused by the applicant’s own refusal to accept the treatment offered to him. It finds therefore that the medical care available to the applicant was adequate in the circumstances.
40. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. The Court notes that the complaint concerning the conditions of the applicant’s detention in the Simferopol SIZO is on the contrary not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Noting also that it is not inadmissible on any other grounds, the Court declares it admissible.
42. The applicant’s principal complaint is that the specific conditions of his detention having regard to his disability were in breach of Article 3. He submitted that because the Simferopol SIZO had not been adapted for wheelchair-bound detainees, he had been dependant on other inmates for his basic needs (such as using the toilet, taking a shower or getting meals). He had been deprived of daily walks, and had had fewer meetings with his lawyer than he had wished, as for every such meeting his cellmates had had to carry him. In the absence of adequate facilities and attendance to his special needs, he had had several accidents in the SIZO, such as burning his feet with hot water and breaking a rib. Lastly, he submitted that the physical conditions of his detention had been poor.
43. The Government contested that there had been a violation of the applicant’s Convention rights. They submitted that although the SIZO had not been adapted for wheelchair-bound detainees, two people from the staff had been allotted to assist the applicant in view of his physical condition.
44. The relevant general principles of the Court’s case-law concerning Article 3 of the Convention and the State’s obligations stemming from that provision are summarised in particular in Helhal v. France (no. 10401/12, §§ 49-52, 19 February 2015).
45. The Court takes note of the Government’s acknowledgment of the lack of technical arrangements in the SIZO that could have facilitated the detention of individuals with physical disabilities (see paragraph 43 above). It reiterates that where the authorities decide to place and keep a disabled person in continued detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his or her disability (see Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Z.H. v. Hungary, no. 28937/11, § 29, 8 November 2012).
46. The parties disagreed as to whether the applicant had been assisted by the fellow inmates or by the SIZO staff while detained. However the Government did not provide any details in that connection, including whether the SIZO staff had been trained or had had the necessary qualifications to provide such assistance.
47. The Court observes in this regard that the Government have not commented on the incidents which led to the applicant having sustained boiling-water burns in the course of taking a shower (see paragraph 17 above) and having his rib broken (see paragraph 23 above). The Court therefore finds plausible the applicant’s statements that the mentioned injuries originated as a result of the failure to meet his basic needs in the conditions that would respect his human dignity. This element shows that the assistance of the SIZO staff, if any, could not have ensured the applicant’s autonomy or guaranteed his physical and moral integrity.
48. Although the applicant spent a considerable amount of time at the SIZO medical unit, neither the Government’s submission, nor the available material suggest that the conditions of detention of people with physical disabilities at the SIZO medical unit were different from those available in ordinary wings of the SIZO.
49. In this connection, the Court refers to the findings of the CPT in 2013 noting that conditions in the cells of the Simferopol SIZO had been as miserable as some thirteen years previously when the Committee had first visited that facility (see paragraph 32 above). While the CPT did not examine the specific conditions of detention of people with physical disabilities, the Court finds it unrealistic to assume, against the background of what had been observed by the CPT, that those specific conditions were of greater difference.
50. In the light of the foregoing considerations and their cumulative effects, the Court holds that the specific conditions of the applicant’s detention in view of his physical disability and, in particular, his inability to access the various parts of the SIZO independently, including the canteen and the sanitation facilities, and in such a situation the lack of any organised assistance in respect of his mobility around the facility or his daily routine, must have caused him unnecessary and avoidable mental and physical suffering, diminishing his human dignity. That amounted to inhuman and degrading treatment. There has, accordingly, been a violation of Article 3 of the Convention.
51. Having regard to its findings above, the Court finds that there is no need to examine separately the applicant’s complaint concerning the other physical conditions of his detention in the Simferopol SIZO.
52. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his remand in custody on 25 January 2011 and his detention pending trial following that had been arbitrary. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 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 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
53. 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.
54. The applicant submitted that the decision of the Crimea Court of Appeal of 25 January 2011 had been an arbitrary and unnecessary measure. That decision had not been based on relevant and sufficient reasons and the domestic court had failed to take into account the applicant’s state of health; it had never examined any alternative, less intrusive preventive measures, such as a commitment not to leave the town or bail.
55. The Government submitted that the applicant’s deprivation of liberty on 25 January 2011 had been lawful and necessary.
56. The applicable case-law is recapitulated, for example, in Assanidze v. Georgia ([GC], no. 71503/01, § 171, ECHR 2004‑II), Winterwerp v. the Netherlands, (judgment of 24 October 1979, Series A no. 33, pp. 19-20, § 45), Nešťák v. Slovakia (no. 65559/01, § 74, 27 February 2007), and Khayredinov v. Ukraine (no. 38717/04, §§ 27-28, 14 October 2010).
57. In the present case, the Crimea Court of Appeal decided on 25 January 2011 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody in view of the seriousness and the nature of the criminal offences in issue. Neither the Government’s observations nor the available material suggest that the Crimea Court of Appeal had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances, in particular in view of the applicant’s disability. Neither did the Crimea Court of Appeal state which risks justified the applicant’s detention on remand, for example, the risk of his absconding, influencing witnesses or hindering investigation. Furthermore, it does not appear that the Crimea Court of Appeal made an appropriate assessment of facts relevant to the question of whether such a preventive measure was necessary in the circumstances.
58. In the light of the foregoing, the Court considers that the decision of the Crimea Court of Appeal of 25 January 2011 did not afford the applicant the adequate protection from arbitrariness which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision.
59. 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.”
60. The applicant claimed 47,000 euros (EUR) in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage.
61. The Government considered that claim unsubstantiated and excessive.
62. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000, the full amount sought in respect of non‑pecuniary damage, plus any tax that may be chargeable.
63. The applicant also claimed reimbursement for the costs and expenses in the amount to be determined by the Court. The Government did not comment on that claim.
64. 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, the applicant failed to demonstrate that he had indeed incurred any expenses in the proceedings related to his case. The Court therefore makes no award under this head.
65. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three 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;
Done in English, and notified in writing on 19 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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