Judgment (Merits and Just Satisfaction) of Court (Fifth Section), June 11, 2015 (case CASE OF LUTSENKO v. UKRAINE (No. 2))

JudgeFOMIN I. ; TELYCHENKO V. ; BUSCHENKO A.
DefenseUKRAINE (No. 2)
Resolution DateJune 11, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF LUTSENKO v. UKRAINE (No. 2)

(Application no. 29334/11)

JUDGMENT

STRASBOURG

11 June 2015

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 Lutsenko v. Ukraine (no. 2),

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

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              Vincent A. De Gaetano,              André Potocki,              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 12 Mai 2015,

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

PROCEDURE

  1. The case originated in an application (no. 29334/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Vitaliyovych Lutsenko (“the applicant”), on 6 May 2011.

  2. The applicant was represented by Ms Valentyna Telychenko, Mr Igor Fomin and Mr Arkady Buschenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy, from the Ministry of Justice.

  3. The applicant complained, in particular, under Article 3 of the Convention, about the material conditions of his detention in the Kyiv detention facility and that the medical care he had received was inadequate. He also alleged that he had been held in a small and poorly ventilated room while waiting for the hearings, and in a metal cage during the hearings themselves.

  4. On 14 February 2012 the application was communicated to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964.

    A. Background of the case

  6. The applicant was the Minister of the Interior. He occupied this post from 2005 to 2006 and from 18 December 2007 to 11 March 2010. Since 27 August 2014 he has been the leader of the Bloc of Petro Poroshenko party.

  7. On 2 November 2010 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., on suspicion of abuse of office under Article 191 § 3 of the Criminal Code. On 5 November 2010 the applicant was formally charged. On the same day he gave a written obligation not to abscond.

  8. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code, on the ground that he had arranged for the allocation of a one-room apartment to his driver, Mr P.

  9. The two criminal cases were joined together.

  10. On 13 December 2010 the GPO completed the investigation in the case and formally charged the applicant with both offences, having reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code (misappropriation, embezzlement, and conversion of property by malfeasance).

  11. On 26 December 2010 the applicant was arrested and detained in the Security Service Detention Centre (Слідчий Ізолятор Служби Безпеки України).

  12. On 27 December 2010 the Pechersk District Court (Печерський районний суд) (hereinafter “the Pechersk Court”) ordered that the preventive measure in respect of the applicant be changed from a written obligation not to abscond to remand in custody.

  13. On 28 December 2010 the applicant was transferred to Kyiv Pre-Trial Detention Centre no. 13 (Київський Слідчий Ізолятор №13) (hereinafter “the SIZO”).

  14. On 17 May 2011 the GPO submitted the applicant’s criminal case to the Pechersk Court which, on 27 February 2012, rendered a judgment sentencing the applicant to four years’ imprisonment. The case received extensive attention in both national and international media which were present at court hearings. Photographs depicting the applicant behind metal bars were published soon after the court hearings.

  15. On 7 March 2012 the applicant appealed, seeking the quashing of the first-instance judgment on the ground of lack of guilt.

  16. On 16 May 2012 the Kyiv Court of Appeal (Апеляційний суд міста Києва) upheld the judgment of the Pechersk Court.

  17. On 31 August 2012 the applicant was transferred to Mena colony in Chernihiv Region to serve his prison sentence.

  18. In a judgment of 3 April 2013 the Higher Specialised Court of Ukraine for civil and criminal cases (Вищий спеціалізований суд України з розгляду цивільних і кримінальних справ) upheld the applicant’s prison sentence slightly reducing the amount of compensation that he had to pay.

  19. On 7 April 2013 the former President of Ukraine issued a decree of pardon in respect of a number of individuals, including the applicant, who was released the same day.

    B. The applicant’s health and the medical care provided to him

  20. Prior to his arrest the applicant was diagnosed with diabetes mellitus type 2 and chronic gastritis and pancreatitis.

  21. Upon his admission to the SIZO on 28 December 2010, the applicant was examined by the head of the medical unit and a duty doctor. He underwent clinical, laboratory and X-ray examinations. On the basis of those examinations and the applicant’s anamnesis, he was diagnosed with symptomatic hypertension and it was recommended that his arterial pressure be constantly monitored. According to the applicant, the prison doctors did not pay attention to his chronic diseases which were mentioned in the medical report submitted to the Pechersk District Court and indicated orally by him on a number of occasions.

  22. According to the Government, during the period from December 2010 to April 2011 the applicant was under constant supervision by doctors of the SIZO medical unit who visited him on 29, 30 and 31 December 2010, 1-9, 17 and 24 January, 10, 18 and 25 February, 1, 10 and 20 March and on 1 April 2011. During this period, no complaints were received from him and his state of health remained satisfactory. Doctors regularly measured his blood pressure and pulse rate and carried out his general examination. The applicant denied that he had not complained about problems connected with his state of health. According to him, during the three first months of his detention, he lost more than 20 kilograms, his low-grade fever and spastic stomach pain was constant.

  23. Following the applicant’s complaints about the deterioration of his health, on 24 February 2011, a private medical laboratory took blood samples from him for analysis. Inflammation was diagnosed as a result. The doctor who arrived at that conclusion presumed that it was probably a mixed viral and bacterial infection. A provisional diagnosis of rheumatoid arthritis was also made. For more specific diagnoses, further specialist examinations were required.

  24. On 9 March 2011 the applicant was diagnosed with arthritis by SIZO doctors.

  25. On 15 March 2011 a new blood analysis showed some negative changes in the applicant’s immune system. His requests for examination by the cardiologist/rheumatologist who issued the above conclusion were without success.

  26. According to the Government, on 6 and 13 April 2011 the applicant was examined by the head of the SIZO medical unit. He complained of pain in the joints. He was diagnosed with symptomatic hypertension and generalised osteoarthritis, and blood pressure monitoring was recommended.

  27. On 21 April 2011 the applicant went on hunger strike in protest at his continued pre-trial detention.

  28. According to the Government, between 22 April and 10 May 2011 the applicant was under daily supervision by doctors of the SIZO medical unit. From time to time he complained of dizziness and general weakness. His state of health remained satisfactory during this period.

  29. On 29 April 2011 the SIZO administration placed him in a solitary-confinement cell and demonstrated forced-feeding facilities (such as handcuffs, a mouth widener and a rubber tube). Those were apparently never applied to him.

  30. According to the Government, on the same day, the applicant was examined by the head of the SIZO medical unit. He complained of heart pain, which he said was worse when he made turning movements. The applicant was diagnosed with symptomatic hypertension, generalised osteoarthritis, and myositis of the left major pectoral muscle. At the same time, he informed the doctor that he had eaten no food for several days and had only had tea without sugar and coffee with sugar. An analysis of the applicant’s urine was carried out. There was a one-plus reaction for acetone. General monitoring of the applicant’s state of health, of the acetone level in his urine, and of his blood pressure was recommended.

    On 1 May 2011 the applicant was examined by a panel of doctors from the State Prison Service of Ukraine (Державна пенітенціарна служба України) (hereinafter “the SPS”). He was prescribed an “anti-starvation food mixture” (semolina or oatmeal, butter, sugar, milk, eggs, boiled meat, salt, and ascorbic acid, with a total caloric content of 1,638.5 kcal) and the following medication: NaCL solution, vitamins Bl and B6, and Riboxin solution. On the same date a general blood analysis, a blood sugar-level test and a urine acetone test were carried out for the applicant - (a “three-plus” reaction was obtained). On the same date the applicant consumed 500 ml of “anti-starvation food mixture”.

    On 2 May 2011 the SPS medical panel found his general state of health stable and held that positive progress was being made in overcoming dizziness and general weakness. A urine test for acetone was carried out for the applicant (a “three-plus” reaction was obtained).

    On 3 May 2011, upon another examination by the SPS medical panel, a urine acetone test was carried out for the applicant. A “three-plus” reaction was obtained. On the same date the applicant consumed 400 ml of...

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