FIFTH SECTION      CASE OF VOROBYEV v. UKRAINE (Application no. 28242/10)       JUDGMENT   STRASBOURG 16 October 2014  FINAL 16/01/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vorobyev v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Ann Power-Forde, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar,Having deliberated in private on 23 September 2014,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 28242/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Vyacheslavovich Vorobyev (“the applicant”), on 20 April 2010.2. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.3. On 24 September 2012 the application was communicated to the Government.THE FACTS4. The applicant was born in 1972 and before his arrest lived in Kerch. In 2000 he contracted pulmonary tuberculosis. It remains unknown whether the applicant received any treatment for this condition while at liberty.I. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT AND PHYSICAL CONDITIONS OF HIS DETENTIONA. Criminal proceedings5. On 31 January 2009 the applicant was arrested on suspicion of having committed an armed robbery and was taken to a police station. He claimed that he had been physically ill-treated at the police station and forced to sign a waiver of his right to a lawyer. However, he did not provide any documentary evidence that he sustained injuries on that date. The applicant also alleged, without providing further details or any evidence, that he had not been given enough time to prepare his defence. On the same date the applicant was questioned without a lawyer being present.6. On 27 April 2009 the Kerch Town Court found the applicant guilty of unlawful possession of a weapon and armed robbery, sentenced him to nine years’ imprisonment and ordered the confiscation of all his property. The conviction was based on various items of evidence, including statements made by the applicant himself at the trial, in which he admitted to having bought a weapon and broken into a flat to rob an old woman. The applicant did not appeal against the judgment.7. On an unspecified date he lodged a cassation appeal with the Supreme Court and complained that the evidence against him had been falsified, that the first-instance court had not examined the witnesses and evidence properly, and that his guilt had not been properly established. He did not complain about the lack of access to a lawyer or the insufficient time to prepare his defence. On 15 October 2009 the Supreme Court rejected his cassation appeal as unfounded. The applicant received the copy of this decision on 27 October 2009.8. On 10 January 2011 the Court asked the applicant to provide copies of relevant documents from the criminal case file. The applicant applied to the first-instance court in this respect. On 16 March 2011 the president of the first-instance court rejected the request, noting that there was no legal basis in domestic law.9. On several occasions the applicant requested that the first-instance court give him access to the case file, but to no avail.B. Physical conditions of detention10. Between 1 February and 26 March 2009 the applicant was held in the Simferopol Temporary Detention Facility (ITT). Between 26 March and 7 July 2009 he remained in the medical unit of the Simferopol Pre-trial Detention Facility (SIZO). According to the applicant, the conditions of his detention in the ITT and the SIZO were deplorable.11. Between 7 and 13 July 2009 the applicant was held in Prison no. 7 for prisoners suffering from tuberculosis.12. Between 13 July and 14 August 2009 the applicant was held in the specialist tuberculosis hospital in Prison no. 61.13. On 14 August 2009 the applicant returned to Prison no. 7 and remained there until 1 December 2010. According to the applicant, in the autumn the temperature in the cells was around 12oС, while in winter it was only two degrees warmer than outdoors. The windows in the prison cells were covered with polyethylene sheets instead of glass, the cells were damp, and the food was inadequate. The applicant did not provide any further details about the cells or the food.14. The Government argued that the applicant’s description of the conditions in Prison no. 7 was inaccurate. According to them, the prison was heated by its own boiler plant, which in 2009 began operating on 21 October, while in 2010 it began on 8 October. During the autumn-winter periods of 2009-11 the temperature in the prison premises was: 18-20oC in the residential area, 20-22oC in the medical facilities, and 25-27oC in the bath-and-laundry wing. All the windows in the prison were properly glazed prior to the beginning of the cold season. The cells had natural ventilation. The humidity in the cells was measured daily. The level was 44%, which was normal. The food which the applicant received was in compliance with national legislation. The Government supported their description of the conditions in Prison no. 7 by certificates issued by the prison administration.15. On 1 December 2010 the applicant was sent to Simferopol Prison no. 102 for healthy detainees. He was detained there until 27 January 2011.16. From 27 January to 9 February 2011 the applicant was detained in Prison no. 7.17. From 9 February 2011 onwards the applicant was detained in Prison no. 102.II. MEDICAL ASSISTANCE IN DETENTION FACILITIES18. According to the applicant, on 1 February 2009 he informed the ITT paramedic that he was suffering from tuberculosis. According to the Government, the applicant did not inform the ITT administration that he had any health problems.19. On 5 February 2009 a radiography examination revealed changes in the applicant’s lungs and it was recommended that he be examined by a specialist.20. On 9 February 2009 the applicant underwent blood and sputum tests in Kerch Municipal TB Hospital no. 1 and was examined by a specialist. On the same date the ITT administration asked the TB hospital to assess whether the applicant required medical treatment and isolation in connection with his tuberculosis.21. On 2 March 2009 the applicant underwent another radiology examination in the TB hospital. The radiologist who conducted the examination noted that the applicant had “disseminated infiltrated TB”. However, laboratory tests carried out on the same date did not confirm that diagnosis, having revealed no tuberculosis bacteria in the applicant’s blood and sputum.22. On 19 March 2009 the doctors of the TB hospital, having studied the results of the above-mentioned medical tests and examinations, concluded that (i) the changes in the applicant’s lungs discerned from the radiography images were post-tuberculosis scars indicating that his tuberculosis had been cured; (ii) there were no tuberculosis bacteria in the applicant’s blood and sputum; (iii) the applicant did not need medical treatment or isolation; and (iv) he fell within category 5.1 (see the Order of the Ministry of Health of Ukraine no. 384 of 9 June 2006 below). Those conclusions were sent to the ITT administration.23. On 26 March 2009, following the applicant’s arrival at the SIZO, it was established that his tuberculosis had reactivated. He was placed in the SIZO medical unit and started receiving anti-tuberculosis medication. He also underwent an unspecified number of medical tests aimed at establishing the exact type of his tuberculosis. The applicant did not provide further details about the tuberculosis treatment he received in the SIZO.24. On 8, 9 and 10 July 2009 the applicant underwent sputum tests and a radiography examination of the thorax.25. Between 13 July and 14 August 2009 the applicant underwent bronchoscopy examination and was diagnosed with recurrent infiltrative tuberculosis and chronic bronchitis. He was prescribed treatment for his diseases, which he subsequently received. The case-file contains a certificate noting that the treatment for tuberculosis which the applicant received from 13 to 22 July 2009 was “ineffective”.26. On 17 August and 19 August 2009 the applicant underwent a microscopic sputum examination.27. On 8 October 2009 the applicant underwent a radiography examination of the thorax.28. On 28 October 2009 the applicant’s medical treatment for tuberculosis was modified.29. On 8 December 2009 the applicant was examined by a doctor, who diagnosed him with cervical and thoracic osteochondrosis.30. On 17 December 2009 the applicant underwent another sputum test.31. On 20 January 2010 a radiography examination of the applicant’s thorax revealed “some positive dynamics” in the state of his lungs.32. On 22 April 2010 the applicant was examined by a neuropathologist and diagnosed with osteochondrosis of the lumbar spine.33. On 27 April 2010 the applicant underwent another radiography examination of the thorax.34. On 28 April 2010 the applicant underwent a radiography examination of the spine and was diagnosed with diffuse osteoporosis and osteosclerosis. On the same date he was examined by a neuropathologist, who prescribed him medication for those diseases. He subsequently received that medication. No further information about the gravity of the applicant’s osteoporosis, osteosclerosis and osteochondrosis or their progress was made available to the Court.35. On 30 April 2010 the applicant was examined by a doctor. On 5 May 2010 he underwent an electrocardiogram, and spirography and sputum tests.36. On 11 May 2010 the applicant was again examined by the doctor, who diagnosed him with chronic bronchitis and prescribed medication, which the applicant subsequently received. The applicant did not inform the Court about the progress of his bronchitis.37. On 14 July 2010 the applicant’s anti-tuberculosis treatment was modified.38. On 4 August 2010 the applicant underwent a sputum test, which revealed that the tuberculosis bacteria were not increasing.39. On 11 August 2010 the applicant underwent another radiography examination of the thorax.40. On 5 October 2010 the applicant underwent another sputum test, which revealed no tuberculosis bacteria.41. On 3 November 2010 the applicant underwent a radiography examination of the thorax.42. The applicant’s anti-tuberculosis treatment was completed on 26 November 2010 because he had recovered. He was registered as a person requiring regular follow-up radiography examinations of the lungs.43. On 27 January 2011 the applicant underwent laboratory tests and a chest X-ray, which confirmed that he had recovered from tuberculosis and no longer required treatment.44. The applicant stated before the Court, without having submitted any evidence or further details, that his eyesight had deteriorated as a result of the anti-tuberculosis treatment, and that he had been allergic to the anti-tuberculosis medication he had received.III. RELEVANT DOMESTIC LAW Order of the Ministry of Health of Ukraine no. 384 of 9 June 2006 on Approval of the Protocol of Medical Assistance for Patients with Tuberculosis45. According to Order no. 384 of the Ministry of Health there are five main categories and five sub-categories for the recording of those who have TB or may be affected by it. Patients with residual changes of various organs after the TB has healed fall into category 5.1.46. The relevant part of the Order reads as follows:“Detection of tuberculosis includes the following stages:1. Examination of a patient’s complaints2. Radiography examination3. Acid-fast bacteria smear and culture testsIn the event that radiography reveals changes in a person’s lungs, he or she must undergo microscopic sputum examinations on three consecutive days.When establishing diagnosis of tuberculosis, preference should be given to laboratory tests – acid-fast smear and culture.Patients with category 5.1 TB should undergo chest X-rays at least every six months during the first year of monitoring.”THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION47. The applicant complained that the conditions of detention in Prison no. 7, the SIZO and the ITT had been deplorable and had not met the requirements of Article 3 of the Convention. In particular, the conditions of detention in the latter establishment had led to the reactivation of his tuberculosis. Articles 3 of the Convention reads as follows:Article 3“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Conditions of detention in the ITT and SIZO48. The Government argued that the conditions of the applicant’s detention had been adequate.49. The Court considers that pursuant to Article 35 § 1 of the Convention it cannot examine the merits of the complaints about the conditions of detention in the ITT and SIZO as they concern the periods that ended on 26 March 2009 and on 7 July 2009, respectively, that is more than six months before the application was submitted to the Court. This part of the application is therefore inadmissible.B. Conditions of detention in Prison no. 750. The Court observes at the outset that the applicant’s complaint about the conditions of his detention in Prison no. 7 from 14 August 2009 to 1 December 2010 and from 27 January to 9 February 2011 was lodged within the six-month time-limit.51. The Court next reiterates that in order to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim. Cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations.

Outcome for Article 34: violation