49614/18

FIFTH SECTION CASE OF GERASIN v. UKRAINE (Application no. 49614/18)             JUDGMENT   STRASBOURG 6 February 2020   This judgment is final but it may be subject to editorial revision. In the case of Gerasin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Gabriele Kucsko-Stadlmayer, President,  Mārtiņš Mits,  Lәtif Hüseynov, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 16 January 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 October 2018. 2.  The applicant was represented by Mr V.O. Poyarkov, a lawyer practising in Odesa. 3.  Notice of the application was given to the Ukrainian Government (“the Government”). THE FACTS 4.  The applicant’s details and information relevant to the application are set out in the appended table. 5.  The applicant alleged that he did not receive adequate medical care in detention. THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.  The applicant complained that he was not afforded adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7.  The Court notes that the applicant suffered from serious medical conditions, as indicated in the appended table, which affected his everyday functioning. Therefore he could have experienced considerable anxiety as to whether the medical care provided to him was adequate. 8.  The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see, for example, Gorbulya v. Russia, no. 31535/09, § 62, 6 March 2014, and Pokhlebin v. Ukraine, no. 35581/06, § 62, 20 May 2010, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia, Ukhan v. Ukraine, no. 30628/02, § 74, 18 December 2008, and Kolesnikovich v. Russia, no. 44694/13, § 70, 22 March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, for instance, Sadretdinov v. Russia, no. 17564/06, § 67, 24 May 2016, and Konovalchuk v. Ukraine, no. 31928/15, § 52, 13 October 2016, with further references) 9.  Having examined all the material submitted to it, the Court has identified the shortcomings in the applicant’s medical treatment which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005 II; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006; and Logvinenko v. Ukraine, no. 13448/07, §§ 68-78, 14 October 2010). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant did not receive comprehensive and adequate medical care whilst in detention. 10.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11.  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.” 12.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Logvinenko v. Ukraine, cited above, §§ 89-95), the Court considers it reasonable to award the sum indicated in the appended table. 13.  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, Declares the application admissible; Holds that it discloses a breach of Article 3 of the Convention on account of the inadequate medical care in detention; Holds (a)  that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, 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 amounts 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 6 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Liv Tigerstedt Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President APPENDIX Application raising complaints under Article 3 of the Convention (inadequate medical treatment in detention) Application no. Date of introduction Applicant’s name Date of birth Principal medical condition Shortcomings in medical treatment Amount awarded for pecuniary and non-pecuniary damage per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2] 49614/18 23/10/2018 Tornike GERASIN 02/10/1984 paralysis of lower limbs and paraparesis of upper limbs, impossibility to move and serve himself without permanent assistance of another person lack of trained personnel to assist the applicant in his every-day needs, lack of equipment (wheelchair), refusal to hospitalise the applicant upon the doctors’ advice   27/09/2018 to 22/11/2018 1 month and 27 days 7,500     [1].  Plus any tax that may be chargeable to the applicant. [2].  Plus any tax that may be chargeable to the applicant.