FIFTH SECTION      CASE OF SOKOLOVSKYY v. UKRAINE (Application no. 6433/18)              JUDGMENT    STRASBOURG 4 July 2019   This judgment is final but it may be subject to editorial revision.In the case of Sokolovskyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Yonko Grozev, President, Gabriele Kucsko-Stadlmayer, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 11 June 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 6433/18) 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 Vasyl Mykolayovych Sokolovskyy (“the applicant”), on 30 January 2018.2. The applicant was represented by Ms O.V. Shapoval, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.3. The applicant complained that he had not received adequate medical treatment in detention and that he had not had an effective domestic remedy for the above complaint. He further complained that the authorities had failed to give relevant and sufficient reasons to justify his pre-trial detention, that there had been no effective procedure to challenge the lawfulness of his detention, and that he had had no enforceable right to compensation for his allegedly arbitrary detention.4. On 2 February 2018 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, so that he could be transferred to a specialist medical facility for further neurological treatment. The Court rejected that request on 20 February 2018. The application was granted priority under Rule 41 of the Rules of Court.5. On 19 April 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1976 and is detained in Kyiv.A. Criminal proceedings against the applicant7. On 1 December 2016 the applicant was arrested by the police on suspicion of human trafficking.8. On 2 December 2016 the Babushkinskyy District Court of Dnipro (“the District Court”) ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. The court further stated that the applicant, while at liberty, might influence witnesses and communicate with others online. No further details were provided by the court in that regard. The court also set bail of 2,000,000 Ukrainian hryvnias (UAH) as an alternative measure. On 5 December 2016 the applicant was released after payment of the bail.9. According to the applicant, upon his release he was immediately arrested by the police on similar charges (new episodes of human trafficking) within other criminal proceedings.10. On 6 December 2016 the District Court ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. No further details were provided by the court in that regard. The court also set bail of UAH 3,000,000 as an alternative measure. On 23 December 2016 that decision was upheld on appeal.11. On 26 January and 22 March 2017 the District Court extended the applicant’s detention until 26 March and 20 May 2017 respectively, retaining the ability for him to be released on bail. The District Court gave similar reasons for his continued detention as those in its decision of 6 December 2016.12. On 4 May 2017 the criminal case against the applicant was forwarded to the District Court for trial.13. On 13 May 2017, in the course of the preparatory hearing, the District Court extended the applicant’s detention until 10 July 2017. The decision stated that he had no permanent place of residence, had been accused of a serious crime, might otherwise abscond or hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. No further details were provided by the court in that regard.14. On 1 June 2017 the Higher Specialised Court for Civil and Criminal Matters changed the court competent to hear the applicant’s case to the Solomyanskyy District Court of Kyiv (“the trial court”).15. On 26 June 2017 the trial court resumed the preparatory hearing and extended the applicant’s detention until 24 August 2017. The court gave similar reasons for the applicant’s continued detention as those given by the District Court in its decision of 13 May 2017, without providing any further details.16. On 7 August, 3 October and 30 November 2017 and 24 January 2018 the trial court extended the applicant’s detention for the respective periods, the most recent period being set to expire on 24 March 2018. The trial court reiterated the reasons for the applicant’s continued detention given previously, without providing any further details. In the decision of 24 January 2018 it dismissed a request for release which the applicant had lodged that day. No reasons were provided for that decision.17. According to the available information, the applicant is being held in detention, while the case against him is still pending before the trial court.B. Medical care provided to the applicant1. The applicant’s state of health prior to his arrest18. According to the applicant, he has a long-term heart condition following a heart attack in 2011. In 2011 and 2016 he underwent stenting treatment.19. On 30 November 2016 he was taken to hospital by ambulance with severe chest pain. He was diagnosed with ischemic heart disease and unstable angina.20. On 1 December 2016 he was discharged from hospital as his state of health had improved.2. Medical care provided to the applicant while in detention21. Between 1 December 2016 and 24 June 2017 the applicant was detained in the Dnipro Pre-Trial Detention Centre (“the SIZO”). He did not submit any information about the medical treatment he received during that period.22. On 24 June 2017 the applicant was transferred to the Kyiv SIZO.23. According to the medical examination carried out that day, the applicant was diagnosed with ischemic heart disease, artherosclerotic and postinfarction cardiosclerosis, atherosclerosis of aorta (transmural myocardial infarction 2011), class III exertional angina (pectoris) and heart insufficiency. He was given recommendations regarding his further treatment. The parties did not provide the Court with details of the recommended treatment.24. On 26 June 2017 the penal authorities informed the applicant’s defence lawyer that the SIZO had no cardiologist on its staff.25. On 4 September 2017 the applicant consulted a SIZO surgeon.26. From 27 to 30 September 2017 the applicant underwent treatment at the Stragesko Cardiology Institute. According to the relevant medical records, the applicant was diagnosed with ischemic heart disease, class III exertional angina (pectoris) and stage 3 hypertension. He was prescribed medication and informed that he required monitoring by a cardiologist. According to the Government, the recommended treatment could be provided to the applicant within the SIZO.27. On 19 January 2018 the applicant consulted a cardiologist at the SIZO who recommended him inpatient treatment at a specialist cardiology facility. His overall condition was described as “moderately serious”. According to the Government, the medical treatment prescribed to him could be provided within the SIZO.28. On 22 January 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, stating that the applicant had, inter alia, the following chronic illnesses: stage 3 hypertension, heart failure, class III exertional angina (pectoris), ischemic heart disease, post-infarction cardiosclerosis, and a post-stent condition. The expert recommended, inter alia, that he be given ongoing medical treatment under the care of a doctor and a coronary intervention. He concluded that the applicant’s health would be put at a serious and potentially fatal risk if he were not provided with adequate inpatient treatment outside the SIZO.29. On 7 February 2018 the SIZO authorities replied to the request by the applicant’s defence lawyer stating, inter alia, that the SIZO had no cardiologist on its staff.30. On 11, 18, 19, 20 and 25 February 2018 the applicant complained to the SIZO authorities about the deterioration of his state of health and requested medical treatment outside the SIZO. In particular, he stated that he had been suffering pain in his chest and dizziness, and had lost consciousness a number of times. It appears that he did not receive any response to his requests.31. According to a certificate issued by the SIZO on 12 February 2018, the applicant remained under the care of the SIZO medical staff and did not require inpatient medical treatment. It was indicated in the certificate that the SIZO had no cardiologist on its staff.32. On 22 February 2018 the SIZO informed the prosecution authorities and the trial court about the applicant’s state of health. The SIZO stated that the recommendations concerning his monitoring by a cardiologist and further treatment at the specialist cardiology facility could not be implemented by the SIZO owing to the absence of a cardiologist on its staff.33. On 27 February 2018 the SIZO governor informed the applicant’s defence lawyer that the applicant was receiving symptomatic treatment. It was mentioned that the provision of specialist and high quality medical treatment was not possible at the SIZO, and that the applicant’s further detention was to be considered by the trial court.34. On 28 February 2018 the State-run facility “The Heart Institute” issued a consultative opinion, recommending that the applicant undergo inpatient cardiology treatment.35. On 1 March 2018 the SIZO again informed the applicant’s defence lawyer, with reference to previous medical opinions, that the applicant required ongoing monitoring by a cardiologist but that this was not possible at the SIZO because there was no cardiologist on its staff.36. On 6 March 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, reiterating the conclusions given in the previous report of 22 January 2018 (see paragraph 28 above).37. On 11 June 2018 the SIZO informed the applicant’s defence lawyer about her client’s state of health, reiterating the same information given on 1 March 2018 (see paragraph 35 above).38. The parties did not inform the Court of the treatment provided to the applicant after June 2018.THE LAWI. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION39. The applicant complained that he had not been provided with adequate medical treatment and care while in detention in the SIZO and that he had not had an effective domestic remedy for the above complaint. He relied on Articles 3 and 13 of the Convention, which read as follows:Article 3“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Article 13“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”A. Admissibility40. The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of inadequate medical treatment. They considered that he should have lodged his health complaints with the prosecutor’s office and the domestic courts.41. The applicant submitted that he had regularly complained about his health issues to the SIZO and the trial court, but to no avail.42. The Court considers that that argument is closely linked to the substance of the applicant’s complaints concerning the lack of domestic remedies for his complaint of inadequate medical treatment. It must therefore be joined to the merits.43. The Court further notes that the above complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention44. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).45. The Court recalls that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning conditions of detention and a lack of medical treatment (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.46.

Outcome for Article 5: violation