FIFTH SECTIONCASE OF PONOMARENKO v. UKRAINE(Application no. 51456/17)    JUDGMENTThis version was rectified on 23 June 2023 under Rule 81 of the Rules of Court.STRASBOURG1 June 2023    This judgment is final but it may be subject to editorial revision. In the case of Ponomarenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Carlo Ranzoni, President, Mattias Guyomar, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 51456/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 July 2017 by two Ukrainian nationals, Mr Dmytro Sergiyovych Ponomarenko (“the first applicant”), who was born in 1991 and died in 2017, and Ms Rayisa Oleksandrivna Ponomarenko (“the second applicant”), who was born in 1973 and living in Kyiv, both of whom had been granted legal aid and were represented by Mr V.I. Melnychuk, a lawyer practising in Kyiv;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko;the parties’ observations;the decision to reject the Government’s objection to the examination of the application by a Committee; Having deliberated in private on 11 May 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The application concerns the lack of adequate medical treatment and assistance provided to the first applicant during his pre-trial detention, leading to his death, and the lack of adequate reasoning in the courts’ decisions to extend his pre-trial detention. Furthermore, the case concerns the allegations of the second applicant that the State should be held responsible for the death of her son, the first applicant, and for her serious suffering caused by the inhuman and degrading treatment of her son while in detention.The first applicant’s detention2. On 7 April 2016 the first applicant was arrested on suspicion of rape of a minor and of theft. On 8 April 2016 the Podilskyi District Court of Kyiv ordered his detention, indicating in general terms as the reasons for its decision the gravity of the charges against him, his previous conviction for a similar crime, the risk of his absconding from the investigation or influencing the victim, and the possibility of his committing new offences. The first applicant’s detention was extended several times for similar reasons to those indicated in the court’s initial detention order.3. On 9 March, 5 May and 17 July 2017 the trial court, which had examined the indictment against the first applicant, rejected as unsubstantiated the defence lawyer’s requests for the first applicant to be released on account of his poor state of health that was life-threatening.Conditions of the first applicant’s detention and medical care provided to him4. From 10 May 2016 onwards the first applicant was held in the Kyiv temporary detention centre (“the SIZO”). Upon admission he was examined by a physician and registered as having been HIV-positive since 2008. On 25 October 2016, following a deterioration in his health, the first applicant was diagnosed with tuberculosis of the internal mammary lymph nodes and cryptococcal meningitis. The next day he was hospitalised in the SIZO medical unit, where he started receiving anti-tuberculosis treatment. His state of health deteriorated to the extent that he was unfit to participate in the court hearings scheduled for 1 and 11 November 2016. On 22 November 2016, following a blood test, he was diagnosed with stage 4 HIV.5. The anti-tuberculosis treatment had some positive effect on the first applicant’s state of health, although that was short-lived as he did not adhere to the proposed treatment. The Government submitted copies of several certificates issued by the SIZO doctors between 20 January and 23 February 2017, attesting the first applicant’s refusal to receive treatment. Later in February 2017, after his state of health had deteriorated again, the first applicant gave his consent for treatment, and it was resumed.6. On 2[1] March 2017 the first applicant was prescribed an antiretroviral therapy. During the treatment his state of health was not stable, causing the development of side effects such as a high temperature, a headache, stomach pain, intoxication syndrome and immunosuppression. The combination of these problems led to the anti-tuberculosis treatment being interrupted. From 27 March to 3 April, from 6 to 12 June and from 16 to 23 June 2017 the first applicant received inpatient treatment in Kyiv City Hospital no. 5 (“the civilian hospital”). The transfers to the civilian hospital were the result of the sharp deterioration of his health while in the SIZO. In particular, on 16 June 2017 it was noted that he was having difficulty swallowing and speaking. Upon discharge each time from the civilian hospital his state of health was assessed as being of medium gravity.7. Between November 2016 and July 2017 the applicants submitted numerous applications requesting the penal authorities to provide the first applicant with medical care, as his state of health had significantly deteriorated. In April, June and July 2017 the SIZO authorities, when updating the trial court about the first applicant’s state of health, explained that it was deteriorating and might lead to his death, and that he required inpatient treatment at a specialist medical facility and nursing care as he was unable to control his bowel movements. They also requested the trial court to consider changing the preventive measure in respect of the first applicant to a non-custodial one. On 26 July 2017 the SIZO prepared a synopsis regarding the first applicant’s health, indicating that his grave condition could be explained by the resistance to medicines caused by long-term HIV infection and his failure to undergo regular medical examinations and receive antiretroviral therapy before his arrest.8. The case file contains a photograph of the first applicant, allegedly taken on the premises of the Podilskyi District Court of Kyiv on 17 July 2017, when an application for the extension of his detention was examined. The photograph shows the first applicant in a helpless position in a wheelchair.9. According to the second applicant, she visited her son in the SIZO on 18 July 2017 and saw that he could not move, speak or eat.10. On 21 July 2017 the Court applied Rule 39 of the Rules of Court, indicating to the Government that the first applicant should have access to and be provided with appropriate specialised care, including being transferred to a specialist medical institution.11. On 31 July 2017 the first applicant was again transferred to the civilian hospital and on 2 August he was placed in the intensive care unit. On 7 August he died of cryptogenic sepsis.12. Following the first applicant’s death, on 10 August 2017 a criminal investigation into medical negligence was instituted. At the time of exchange of the parties’ observations (September 2019), it was still ongoing.The first applicant’s handcuffing13. On 27 June 2017, in response to the second applicant’s complaints that her son, while in the civilian hospital, had been handcuffed to his bed and that his hands had been tied with a bedsheet, the head of the SIZO informed her that in accordance with domestic legislation, handcuffs were applied to all detainees who underwent medical treatment in civilian hospitals.The second applicant’s suffering in connection with her son’s condition14. On 30 June 2017 the second applicant applied to the head of the SIZO, seeking leave for a meeting with her son in the SIZO medical unit. She wished to look after her son, whose poor state of health and helpless condition required special care. On 6 July 2017 she was informed that the domestic legislation did not provide for meetings with detainees outside the specially equipped area or the possibility for individuals from outside the penal system to look after them.THE COURT’S ASSESSMENTlocus standi15. The Court takes note of the death of the first applicant and of his mother’s wish to continue the proceedings in his stead. The Government have not objected. Having regard to the circumstances of the present case, the Court accepts that the first applicant’s mother (the second applicant) has a legitimate interest in pursuing the application in the first applicant’s stead (see Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014).ALLEGED VIOLATION OF ARTICLEs 2 and 3 OF THE CONVENTION16. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained under Articles 2 and 3 of the Convention that the State had failed to provide the first applicant with appropriate care and assistance in detention given his serious physical disability and had thus failed to protect his health, physical well-being and life. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital and submitted that she had endured serious mental suffering on account of the inhuman and degrading treatment of her son while in detention.17. The Court has examined the Government’s objections regarding non‑exhaustion of domestic remedies by the first applicant in respect of the complaints of the lack of medical treatment and the failure to be provided with appropriate care and assistance in detention given his serious physical disability, and by the second applicant in respect of the serious mental suffering she had endured by witnessing the ill-treatment to which her son had been subjected during his pre-trial detention, and decides that they should be dismissed for reasons similar to those examined in Melnik v. Ukraine (no. 72286/01, §§ 68 and 70, 28 March 2006), and Salakhov and Islyamova v. Ukraine (no. 28005/08, §§ 95-100 and 103-04, 14 March 2013).18. The Court further notes that the remainder of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.Article 2 of the Convention19. The Government asserted that the applicants’ complaints were unsubstantiated. They pointed out that the first applicant had refused the anti‑tuberculosis treatment offered to him in January and February 2017.20. The relevant principles under Article 2 of the Convention concerning the State’s obligations in the area of healthcare can be found in Makharadze and Sikharulidze v. Georgia (no. 35254/07, §§ 71-73, 22 November 2011) and Salakhov and Islyamova (cited above, §§ 126-33).21. Upon his admission to the SIZO in May 2016, the first applicant was considered to be infected with HIV. However, no test was carried out until November that same year, by which time his HIV infection had advanced to stage 4, entailing serious consequences for his health. The Government did not give any reasons for the delay in his testing or the administration of the relevant treatment, which had been initiated almost four months after the test. As to the tuberculosis, it would appear that he contracted that disease while in detention, since no anomaly in his chest had been detected upon his admission to the SIZO.22. Regarding the Government’s contention that the first applicant had refused the anti-tuberculosis treatment offered to him in January and February 2017 (see paragraph 5 above), they did not show that the short-term refusal could have seriously impaired the treatment’s effectiveness.23. Although he received medical treatment for both diseases while in the SIZO, his state of health was already deteriorating. He received inpatient treatment on an intermittent basis. Both the doctors from the civilian hospital and the SIZO administration suggested that the domestic court change the preventive measure in respect of the first applicant in view of the seriousness of his state of health, but to no avail (see paragraph 7 above).24. It would appear that as long as he remained in detention, it would have been impossible for the first applicant to receive better treatment against the background of the serious deterioration of his condition which eventually led to his death. In the absence of a justified explanation from the Government regarding the need for the first applicant’s detention and having regard to its above considerations concerning the deficiencies in his medical treatment which resulted in the continued deterioration of his state of health and eventually his death, the Court finds that the authorities failed to adequately discharge their positive obligation to protect the first applicant’s health and life.25.

Outcome for Article 5: violation