FIFTH SECTION      CASE OF RUDYAK v. UKRAINE (Application no. 40514/06)      JUDGMENT    STRASBOURG 4 September 2014  FINAL 04/12/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Rudyak v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Ann Power-Forde, Vincent A. De Gaetano, André Potocki, Helena Jäderblom, judges, Myroslava Antonovych, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 24 June 2014,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 40514/06) 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 Igor Mikhaylovich Rudyak (“the applicant”), on 26 September 2006.2. The applicant, who had been granted legal aid, was represented by Mr Ye. Gryn, a lawyer practising in the town of Gadyach, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine.3. The applicant alleged, in particular, that he had been ill-treated by the police in 2005, that the subsequent investigation into these events had been ineffective and that he had not been provided with adequate medical assistance while in pre-trial detention.4. On 18 March 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Ms Myroslava Antonovych to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1974 and lives in Gadyach.A. Events of 20046. On 25 February 2004 the applicant was arrested in Gadyach by the Kharkiv Chervonozavodskiy District Police Drug Squad (Відділ по боротьбі із незаконним обігом наркотиків Червонозаводського районного відділу Харківського міського управління Міністерства внутрішніх справ України – “the Drug Squad”) and taken to Kharkiv. The applicant stated that he had been ill-treated by the police and that upon his arrest a police officer had hit him in the left eye.7. On 19 July 2004 the Gadyachskiy District Court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years’ imprisonment, suspended for three years. On the same date the applicant was released.8. On 27 November 2004 the applicant was diagnosed with a cataract and a subatrophy of the left eyeball. The only recommendation after the diagnosis was to avoid hypothermia. According to the applicant, he planned to have eye surgery. No medical evidence was submitted in this respect.B. The applicant’s arrest in 2005 and subsequent events9. On 19 April 2005 the applicant was again arrested in Gadyach after selling drugs to D. and taken to Kharkiv by the Drug Squad. The applicant stated that he “had been beaten by the police after his arrest for three days simply because he had wanted to have a lawyer”. He further stated that “pending investigation” a gas mask had been put on his face with lit cigarettes inserted into the air valve.10. On 20 April 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant had head and left shoulder injuries, a haematoma on the left ear and had possibly suffered a closed craniocerebral injury. However, the certificate stated that the applicant could be detained, so long as he was under the supervision of a neurosurgeon.11. On 22 April 2005 criminal proceedings on drug trafficking charges were instituted against the applicant and it was decided to arrest him.12. On 29 April 2005 the Kharkiv Chervonozavodskiy District Court (“the Chervonozavodskiy Court”) remanded the applicant in custody.13. On 5 May 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant was suffering from the after-effects of a head injury but that he could be detained. He was also examined by an ophthalmologist and diagnosed with an old optic subatrophy in the left eye.14. On 6 May 2005 the applicant was placed in Kharkiv Pre-Trial Detention Centre no. 27 (“the SIZO”). It was noted in his medical file that on 25 February 2004 he had suffered an eye injury and that on 19 April 2005 he had been suffering from a head injury. He was diagnosed with a cataract and with a subatrophy of the left eye.15. On 3 June 2005 the Kharkiv Regional Prosecutor’s Office ordered the Head of the Kharkiv Regional Office of the Ministry of Internal Affairs of Ukraine (начальник Управління Міністерства внутрішніх справ України в Харківській області – “the regional head”) to look into the applicant’s complaints of ill-treatment.16. On 21 July 2005 the regional head informed the applicant that the police officers involved had not broken any laws.17. On 5 October 2005 the applicant asked the Chervonozavodskiy Court to obtain medical evidence from his SIZO medical file which would confirm the infliction of injuries on him.18. On 25 October 2005 the applicant complained to the regional head that:“... on 19 April 2005 police officers, M., S., Sh., K. and G., accompanied by two witnesses, arrived in Gadyach. Again on 20 April 2005 the same diagnosis [was established]: closed craniocerebral injury, facial fractures, nasal fracture, haematomas on the body, arms, legs and left ear, scratches.”19. On 19 April 2006 the Chervonozavodskiy Court, examining the applicant’s case on the merits, ordered the Chervonozavodskiy District Prosecutor’s Office (Прокуратура Червонозаводського району м  Харкова) to look into the applicant’s complaints of ill-treatment. The court noted that, according to the applicant, he had been beaten in Kharkiv by police officers M., S., Sh. and G., and that he had later been examined in Hospitals nos. 4 and 11.20. On 27 June 2006 the Chervonozavodskiy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It was noted that the decision to arrest the applicant had been adopted on 22 April 2005 and that the applicant had been questioned on this date. He had refused to have a lawyer present. The applicant had never complained of any ill-treatment. The police officers had stated that they had never ill-treated the applicant. On the same date the Prosecutor’s Office informed the Chervonozavodskiy Court of the decision taken.21. On 11 August 2006 the Chervonozavodskiy Court examined the applicant’s case. The applicant pleaded guilty to some of the charges and stated that he was a drug addict, that the confiscated drugs had been for his personal use only and that he had confessed to drug trafficking after being subject to physical pressure by the police. The court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to six and a half years’ imprisonment.22. The applicant appealed against this decision. On 7 August 2007 he amended his appeal stating, inter alia, that on 12 May 2005 he had asked for the severity of his injuries to be recorded and that he had not been able to appeal against the decision of 27 June 2006 as he had not received a copy of it.23. On 10 January 2008 the Kharkiv Regional Court of Appeal quashed the decision of 11 August 2006 and remitted the case for fresh consideration.24. On 20 November 2008 the Chervonozavodskiy Court again convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years and six months’ imprisonment. The applicant pleaded guilty. He did not appeal against the decision.25. On 23 May 2009 the applicant was transferred to Poltava Correctional Colony no. 64. On 25 May 2010 he was released.26. Between 17 and 28 January 2011 he was admitted to a hospital. He was diagnosed with hypertension, chronic cholecystitis, a cyst of left kidney and optic supatrophy in the left eye.C. Medical assistance in detention27. According to the Government, while in detention, the applicant was examined by an ophthalmologist on numerous occasions, namely on 17 and 22 August 2005 (on the latter date it was noted that the applicant’s state has improved), 23 September 2005, 23 November 2005, 16 and 19 October 2006 (it was noted that the applicant needed no maintenance treatment for his optic subatrophy), 16 July 2009 and 14 March 2010. On no occasion had any deterioration of the applicant’s state of health been established. When the applicant had complained of pain in his left eye, in particular, on 17 August 2005, 23 September 2005 and 23 November 2005, he had been prescribed treatment.28. The applicant submitted that he had been taken to Kharkiv Ophthalmology Clinic but did not provide any further information in this respect.29. On 16 July 2009 the applicant refused to be hospitalised in the ophthalmology department of the prison hospital at Correctional Colony no. 81.30. According to the Government, the applicant had had the following consultations with other specialists:(i)  with a surgeon on 18 May 2006 (complaints about pain in the right leg, the applicant was prescribed medication) and 4 September 2007;(ii)  with a neuropathologist on 5 May 2005 and 13 June 2009;(iii)  with a psychiatrist on 18 May 2005 and 4 September 2007; and(iv)  with a general physician on 30 June 2005 (the applicant complained about a pain in the left eye and general weakness and was advised to see an ophthalmologist), 13 July 2005 (the applicant complained about pain in his back and was prescribed painkillers), 16 September 2005 (the applicant was issued a referral to a civil hospital in order to decide whether he is able to work and whether he falls into any disability group), 16 August 2006, 13 September 2006 and 4 September 2007.31. On 18 December 2005, 6 June 2006, 13 September 2006, 12 October 2006, 9 January 2007, 27 October 2008, 12 January 2009 and 13 June 2009 the applicant underwent periodic medical screening.32. On 10 May 2006 the applicant received treatment for a shoulder injury.33. On 27 February 2010 the applicant complained of hypertension. He was offered an examination and, if necessary, treatment in the prison hospital, which he refused.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION34. The applicant complained that he had been ill-treated by the police in 2005 and that all of his complaints in this respect had been ignored. The applicant further stated that his state of health had deteriorated in detention after his arrest in 2005. The applicant relied upon Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility1. Ill-treatment by the police and subsequent investigation35. The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of ill-treatment by the police officers in April 2005, as he had not appealed against the decision of 27 June 2006 before a prosecutor or a court. The Government contended that such appeal was an effective remedy (see Yakovenko v. Ukraine, no. 15825/06, § 72, 25 October 2007; Lysaya v. Ukraine (dec.), no. 11408/02, 1 February 2011; and Gabibullayev v. Ukraine (dec.), no. 29725/05, 11 February 2011). The Government noted that the applicant had been aware of the decision, as he had mentioned it in his appeal of 7 August 2007. Moreover, the applicant had been aware that on 19 April 2006 the court had ordered that his complaints be investigated, so he should have enquired about the progress of the proceedings in his case (see Gabibullayev, cited above).36. The Government maintained that the applicant’s situation differed from other Ukrainian cases where the decisions not to institute criminal proceedings had been repeatedly quashed, with the result that after a certain lapse of time such appeals had became devoid of any prospect of success (see Kobets v. Ukraine, 16437/04, § 54, 14 February 2008). In the present case the applicant had never challenged the decision not to institute criminal proceedings. Therefore, in the present case there were no reasons to consider an appeal to a court against such a decision as an ineffective remedy.37. The applicant submitted that on 12 May 2005 he had asked the investigating officer to record the severity of his injuries. However, this request had been ignored. He had also complained to various prosecutors of the unlawful actions of the police officers but to no avail.38. The applicant further submitted that he had only learned about the decision of 27 June 2006 when he had been studying the case-file materials after his sentencing on 11 August 2006.39. The Court notes that the Government’s objection is closely linked to the applicant’s complaint under the procedural limb of Article 3 of the Convention. In these circumstances, it joins the objection to the merits of the applicant’s complaint (see Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010).40. The Court further notes that the applicant’s 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.2. Medical assistance in detention41. The Government submitted that the applicant had not complained at the national level of a lack of adequate medical assistance in detention: neither to a prosecutor, nor to a court. He had also not raised this issue before the detention facility’s administration (see Vinokurov v. Russia and Ukraine (dec.), no. 2937/04, 16 October 2007).42. Moreover, the Government considered that the applicant’s complaints in this respect were unsubstantiated. The Government noted that the applicant had been diagnosed with optic subatrophy in the left eye in November 2004. The applicant submitted that he had planned to have eye surgery. However, the Government submitted that there was no evidence that the applicant had ever been recommended for or prescribed such surgery. In detention, the applicant’s state of health had been periodically supervised by an ophthalmologist. On no occasion had any deterioration of the applicant’s condition been established. The applicant had also been prescribed treatment.43. In reply the applicant submitted that he had not been provided with adequate medical assistance after his arrest. The eye drops prescribed to him had not always helped, he had had a dental health problem which had not been properly treated and he had eventually been diagnosed with hypertension. The applicant further stated that his state of health had deteriorated while in detention, he had suffered constant headaches, his left eye had become inflamed, which he submitted could result in him losing sight in his right eye. However, he had not been admitted to a hospital. Although the applicant acknowledged that, while in detention, he had been taken to a civilian hospital for examinations, he stated that this had only occurred after he had gone on hunger strike. He had also refused to be admitted to the other detention facility’s hospital because it had been situated far from his place of detention.44.

Outcome for Article 3: violation