FOURTH SECTION         CASE OF IVANOV AND KASHUBA v. UKRAINE (Application nos. 12258/09 and 54754/10)        JUDGMENT      STRASBOURG 29 January 2019   This judgment is final but it may be subject to editorial revision..In the case of Ivanov and Kashuba v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President, Marko Bošnjak, Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 8 January 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in two applications (nos. 12258/09 and 54754/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Aleksandr Viktorovich Ivanov (“the first applicant”) and Mr Vladimir Mikhaylovich Kashuba (“the second applicant”), on 20 February 2009 and 10 September 2010 respectively.2. The first applicant, who had been granted legal aid, was represented by Mr Igor Karaman, who at that time was a lawyer practising in Kyiv. In 2017 Mr Karaman informed the Court that he could no longer represent the applicant. The second applicant, who had been granted legal aid, was represented by Mr Taras Kalmykov, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna of the Ministry of Justice.3. The applicants alleged, under Article 3 of the Convention, that they had not been provided with adequate medical assistance in detention. The second applicant further alleged, under Article 3 of the Convention, that the conditions of his detention in Ladyzhynka Colony no. 39 had been inadequate, and, under Article 13 of the Convention, that he had not had an effective domestic remedy for his complaints under Article 3.4. On 2 January 2012 the Government were given notification of application no. 12258/09. On 2 July 2015 and 18 February 2017 the complaints within application no. 54754/10 were notified to the Government and the remainder was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.5. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.6. On 8 January 2018 the second applicant died. On 25 January 2018 his son, Mr Pavlo Volodymyrovych Kashuba, expressed the wish to pursue the proceedings before the Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASESA. Application no. 12258/09 (Ivanov v. Ukraine)7. The first applicant, Mr Aleksandr Viktorovich Ivanov, is a Ukrainian national who was born in 1956. He is currently serving a life sentence in Zhytomyr prison no. 8 (“Zhytomyr prison”).1. Background to the case8. On 17 March 1996 the applicant was arrested on suspicion of murder and other crimes. On 23 March 1996 he was placed in the Odessa pre-trial detention centre (“SIZO”).9. On 19 February 1997 the Odessa Regional Court convicted the applicant of aggravated murder and other crimes, and sentenced him to the death penalty. On 10 July 1997 the Supreme Court of Ukraine upheld that judgment and it became final.10. Following a declaration that the death penalty was unconstitutional by a decision of the Constitutional Court of Ukraine in December 1999 and amendments to the Criminal Code in February 2000, on 4 October 2000 the Odessa Regional Court commuted his death sentence to life imprisonment.11. On 29 May 1999 the applicant was transferred to Zhytomyr prison.2. Medical treatment12. On 27 March 1996 while detained in the Odessa SIZO, the applicant was found to have HIV antibodies. According to his medical file, that result was confirmed following further tests on 29 March and 1 April 1996. The applicant was recommended to undergo a clinical immunology examination.13. According to the applicant, no further examination or medical treatment was carried out following the above-mentioned test.14. The applicant’s medical file contains a note by a dermato-venereologist on 19 April 1996 with indication that he was HIV-infected. Another note was made on 31 August 1998 indicating that he received medical advice “on the issues of HIV infection”. Later on, in October 2008 a note was made in his medical file indicating that the applicant had been suffering from HIV for ten years and had had hepatitis B.15. According to the Government, on 20 February, 27 March, 17 April, 3 June, 11 June, 9 September and 5 November 1997, and on 23 January, 5 March, 17 March, 4 June, 7 July, 19 September and 10 December 1998, the applicant underwent regular medical examinations at the SIZO. In the course of those examinations he did not raise any health complaints. An HIV test of 11 January 1999 did not indicate HIV infection in the applicant’s blood. The case file contains a medical certificate of 14 January 1999 indicating that following the HIV test, the applicant was found to have HIV antibodies. He was recommended to undergo an in-depth clinical immunology examination. There is no information in the case file as to whether that recommendation was followed up.16. On 31 May 1999, following the applicant’s transfer to Zhytomyr prison, he underwent a medical examination by a panel of doctors at the prison medical unit. The examination revealed that he was apparently in good health.17. On 25 December 2007 following a blood test, the applicant was revealed viral hepatitis C antibodies.18. On 6 May 2008 the applicant underwent a CD-4 (white blood-cell) test, the result of which was 175 cells per mm3.19. On 25 June 2008, following a regular medical examination by a specialist in infectious diseases, the applicant was diagnosed with stage 2 HIV infection (the CD-4 count was 176 cells). He was prescribed a course of antiretroviral therapy(“the ART”).20. On 13 July 2008 the applicant underwent another CD-4 test, the result of which was 296 cells per mm3.21. According to the applicant’s medical file provided by the Government, in November 2008 he was examined by a doctor from the Zhytomyr regional centre for Aids prevention and control (“the anti-Aids centre”). The applicant was diagnosed with HIV infection (second clinical stage) and hepatitis C in the remission stage.22. According to the Government, on 1 March 2009 the prison received the relevant medication from the penal authorities, and the applicant started the ART course.23. On 7 October 2009 the applicant was examined by a medical commission and diagnosed with HIV infection (second clinical stage), chronic hepatitis (the type of disease was not indicated), chronic gastritis, cholecystitis, ischemic heart disease and second-degree hypertension.24. On 27 August 2010 the applicant underwent a regular examination by a specialist in infectious diseases, who diagnosed him with HIV infection (second clinical stage) and chronic hepatitis C with minimal activity.25. On 19 December 2011 the applicant underwent a regular quarterly examination by doctors from the anti-Aids centre. He was diagnosed with HIV infection (second clinical stage with a CD-4 count of 437 cells) and chronic hepatitis C with minimal activity. It was recommended that he continue receiving the ART by hepatoprotectors twice a year for twenty days.26. The parties did not inform the Court about the treatment the applicant was provided with after December 2011.B. Application no. 54754/10 (Kashuba v. Ukraine)27. The second applicant, Mr Vladimir Mikhaylovich Kashuba, was a Ukrainian national who was born in 1958. At the time of his death (8 January 2018 – see paragraph 6 above), he was serving a life sentence in Ladyzhynka Colony no. 39 (“the Ladyzhynka Colony”).1. Background to the case28. On 7 September 2000 the second applicant was arrested on suspicion of aggravated robbery and murder. On 14 September 2000 he was placed in the Lutsk SIZO.29. On 4 January 2001 the Volyn Regional Court found the applicant guilty of aggravated robbery and murder and convicted him to life imprisonment. By the same judgment he was found to be exceptionally dangerous to society. An appeal on points of law lodged by the applicant was dismissed by the Supreme Court on 24 May 2002.30. On 8 September 2001 the applicant was transferred to the Vinnytsya SIZO.31. On 22 February 2007 he was transferred to the Ladyzhynka Colony.2. Medical treatment32. Upon arrival at the Lutsk SIZO in September 2000, the second applicant was examined by the SIZO medical personnel and placed under monitoring as a person who had suffered tuberculosis (TB).33. Upon arrival at the Vinnytsya SIZO in September 2001, the applicant was examined by the SIZO medical personnel and placed under monitoring as a person who had suffered TB.34. According to the applicant, in March 2003 he underwent a medical check and was diagnosed with TB.35. The applicant submitted that, in May 2003 he had received some medication for his TB. From June to August 2003 he did not receive any treatment. In September 2003 his treatment was resumed and a special diet was prescribed for him. The parties did not specify the nature of that treatment.36. On 18 November 2003 the applicant was examined by a tuberculosis specialist and was diagnosed with clinically cured TB (клінічно вилікуваний туберкульоз). On 30 March 2004 he was examined by another tuberculosis specialist and was diagnosed with spontaneously cured TB (спонтанно вилікуваний туберкульоз), and tuberculoma of the upper part of the left lung. The parties did not specify whether the applicant had been prescribed and had received any treatment during the above-mentioned period of time.37. According to the applicant, between March 2004 and November 2006 he was examined eight times by the tuberculotherapist. During that period he was diagnosed with tuberculoma of the upper part of the left lung and later with post-TB residual changes in the upper part of the left lung (category 5.1). He was prescribed some treatment, the nature of which was not specified by the parties.38. Upon arrival at the Ladyzhynka Colony on 22 February 2007, the applicant was examined by the colony’s medical personnel and placed under monitoring as a person with residual changes in the upper part of the left lung in the form of dense focal lung lesions (щільні вогнищеві тіні), category 5.1.39. According to the applicant, since 27 February 2007 he has been provided with medical treatment and a special diet for his TB. The parties did not specify the nature and duration of that treatment.40. On 3 September 2007, 29 February and 1 September 2008, 1 March and 1 September 2009, and 26 February 2010 the applicant was prescribed a season’s course of anti-relapse treatment and a special diet. The parties did not specify the nature of that treatment.41. According to the Government, between April 2008 and April 2014 the applicant was examined by a prison doctor more than fifty times regarding his TB. He was diagnosed with TB residual changes in the upper part of the left lung in the form of dense focal lung lesions (category 5.1), and chronic bronchitis in the unstable remission stage. Medical treatment was prescribed. The parties did not specify the nature of that treatment.3. Conditions of the second applicant’s detention42. The second applicant submitted that he was forced to remain in a bent position with his arms handcuffed behind his back during regular searches of his cell, for outside walks, and on the way to take showers. He provided the following description of the above-mentioned events.43. Before the cell doors were opened, the applicant was asked to bend down, put his arms behind his back and insert them through a small window in the cell door to have them handcuffed. The guards then opened the cell door, took the prisoners out of the cell and performed a search of the inmates and the cell. During the search, the applicant and the rest of the inmates were kept in a bent position. Upon completion of the search, the applicant was taken back to the cell, the handcuffs were removed and he was allowed to stand up straight once the cell door had been closed.44. In order to take outside walks, the applicant was taken out of the cell in a bent position with his arms handcuffed behind his back. He and the other inmates were forced to assume that position on the way to the exercise yard and back. The inmates were escorted by a group of prison guards and dogs. Sometimes that procedure was followed with beatings with rubber truncheons.45. According to the prison schedule, the applicant was allowed a shower once a week. On the way to the shower facilities and back, he was forced to assume a bent position with his arms handcuffed behind his back. The water in the shower was sometimes cold and the shower itself lasted five minutes. The shower room was dark; it was equipped only with a small window, and there was no electric light inside. There was no heating in the shower room and in winter the temperature there was approximately 7-8oC.46. The applicant was provided with 100 grams of soap per month for his hygiene needs. He received the rest of the hygiene products he needed from his mother.47. The applicant had to wash and dry his clothes in the cell which, as a result, was damp. It was not possible to open the window and ventilate the cell in winter as the heating was too low and the cell got cold at once.THE LAWI. JOINDER OF THE APPLICATIONS48. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).II. PRELIMINARY QUESTION (APPLICATION NO. 54754/10 – KASHUBA V. UKRAINE)49.

Article of the Convention at issue: Article 3
Outcome: violation