FIFTH SECTIONCASE OF IVASHCHENKO v. UKRAINE(Application no. 41303/11)    JUDGMENTThis version was rectified on 28 September 2020under Rule 81 of the Rules of Court  STRASBOURG10 September 2020     This judgment is final but it may be subject to editorial revision. In the case of Ivashchenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Lado Chanturia, Anja Seibert-Fohr, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 7 July 2020,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 41303/11) 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 Valeriy Volodymyrovych Ivashchenko (“the applicant”), on 27 June 2011.2. The applicant was represented by Ms V. V. Telychenko and Ms G. O. Senyk, lawyers practising in Kyiv and Lviv respectively. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.3. The applicant complained, under Article 3 of the Convention, that he had not been provided with adequate medical treatment and assistance while in detention and that he had been confined in a metal cage during the court hearings. He also complained, under Article 5 of the Convention, that his pre-trial detention had been unlawful and lengthy and had lacked justification, and that there had been no effective procedure available to him to challenge the lawfulness of his detention.4. On 23 October 2014 the Government were given notice of the application.THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1956 and lives in Gentofte, Denmark.Criminal proceedings brought against the applicant and his detention6. The applicant was Deputy Minister of Defence from October 2007 until June 2009. From June 2009 until May 2010 he was acting Minister of Defence.7. According to the Government, on 8 April 2010 the Security Service of Ukraine (“the SSU”) opened an operational inquiry (оперативно‑розшукова справа) into the applicant’s alleged unlawful activity in relation to a State-owned enterprise under the management of the Ministry of Defence. Within the framework of the inquiry, the SSU collected certain documentary evidence and information, and forwarded it to the prosecution authorities for consideration. A number of witnesses were questioned; the applicant was also questioned as a witness on 13 and 17 August 2010.8. On an unspecified date the SSU transferred the materials of the inquiry to the prosecution authorities for consideration.9. On 20 August 2010 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings against the applicant on suspicion of attempted abuse of power under Article 364 § 2 of the Criminal Code. He was suspected of exceeding his authority and abusing his office by signing a financial rehabilitation plan of a State enterprise in November 2009, which had resulted in the loss of the State property.10. On the same date the applicant was summoned to appear as a witness within the above-mentioned proceedings. He was to appear again before the investigator on 21 August 2010.11. On 21 August 2010 after appearing before the GPO investigator, the applicant was arrested. According to the arrest report, he had been arrested on the grounds that “eyewitnesses [had] directly identified Mr V.V. Ivashchenko as the one who had committed the offence”. His arrest was justified by the necessity to prevent his evading the investigation or obstructing the establishment of the truth, and to ensure the execution of procedural decisions.12. On 24 August 2010 the Pechersk District Court of Kyiv (“the District Court”) ordered the applicant’s pre-trial detention. The court noted, in particular, that he might otherwise abscond and hinder the investigation and the trial, and that the application of alternative preventive measures would not ensure his proper behaviour. No further details about those reasons were provided by the court.13. On 31 August 2010 the Kyiv Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant against the detention order, endorsing the reasons for the detention advanced by the District Court.14. On 18 October, 20 December 2010 and 18 January 2011 the courts extended the applicant’s detention, most recently until 4 February 2011, referring to the same grounds as those mentioned in the court decision of 24 August 2010 (see paragraph 12 above).15. Meanwhile, on 29 October 2010 new charges of abuse of power under Article 27 § 5 and Article 365 § 3 of the Criminal Code were brought against the applicant.16. On 2 February 2011 the criminal case against the applicant, including the relevant bill of indictment, was received by the District Court for consideration on the merits.17. On 4 March 2011 the District Court decided that the applicant would remain in pre-trial detention for an unspecified period. The court did not specify any particular reason for the applicant’s continuing detention, stating that there were no grounds to change the preventive measure to a written undertaking not to leave his place of residence.18. In the course of the trial, on 1 and 19 August 2011, the applicant asked the court to release him from the metal cage which was systematically used during the court hearings. On the same dates the trial court refused that request, stating that the defendant’s confinement in the metal cage during the court hearings was in accordance with the domestic legislation, and it was not for the trial court to decide on the matter.19. In the course of the trial, the applicant submitted a number of requests to change the preventive measure to a non-custodial one, referring, inter alia, to deterioration of his state of health. On 29 March, 7 April, 16 June, 13 July, 1 and 19 August, 20 September, 27 October and 12 December 2011, and 23 January and 13 March 2012 the trial court refused the applicant’s requests as unsubstantiated, referring, without providing any further details, to the seriousness of the offences he was accused of and to the risks of his absconding and hindering the establishment of the truth. As to the applicant’s arguments concerning the deterioration of his health while in detention, the trial court noted that it had not been provided with evidence showing that the applicant’s state of health was incompatible with his continued detention.20. On 12 April 2012 the District Court found the applicant guilty as charged and sentenced him to five years’ imprisonment, banning him, at the same time, from occupying State positions for three years.21. On 14 August 2012 the Court of Appeal quashed the judgment of the District Court and convicted the applicant to a suspended sentence with a one-year probation period. On the same date, the applicant was released from detention.22. On 12 March 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed an appeal on points of law lodged by the applicant.The applicant’s medical treatment while in detention23. The applicant had been suffering from, inter alia, chronic spinal osteochondritis with persistent pain, post-traumatic cervical spine instability, deforming arthritis of the right knee, cerebral atherosclerosis, kidney problems, and chronic prostatitis since 1995. He had been undergoing medical treatment in the Main Military Clinical Hospital (“the MMCH”) twice a year for seventeen years to prevent his state of health from worsening.24. On 25 August 2010, following the decision of the Pechersk District Court of Kyiv of 24 August 2010 (see paragraph 12 above), the applicant was placed in the Kyiv Pre-trial Detention Centre (“the SIZO”).25. According to the applicant, in mid-April 2011 while detained in the SIZO, he lost all sensation in his toes and later in his feet.26. From 20 to 24 May 2011 the applicant underwent in-patient treatment in the Kyiv Emergency Hospital. At the time of his stay there, he was diagnosed with new conditions, in addition to the existing ones (see paragraph 23 above), notably coronary heart disease, atherosclerotic cardio sclerosis, hypertension, chronic bronchitis and chronic pancreatitis. According to the applicant, he acquired the above-mentioned diseases following his detention in the Kyiv SIZO.27. On 9 June 2011 the head of the MMCH issued a medical certificate confirming that the applicant had been a regular patient in that facility from 1995 to 2009 and that he had undergone treatment there for the diseases listed in paragraph 23 above. It was noted that the diseases were chronic in nature and at a stage requiring in-patient medical treatment at least twice a year.28. On 22 July 2011 the penal authorities reported:“... after a comprehensive medical examination of the applicant ordered by the Pechersk District Court on 13 July 2011, the applicant is advised to undergo treatment in the neurological department of a civilian hospital, since there is no neurological department in the medical unit of the Kyiv SIZO and there is no neurologist among the staff of the Kyiv SIZO medical unit.”29. On 18 August 2011, in reply to a request from the applicant’s lawyer, the MMCH stated, inter alia, that the applicant’s health had deteriorated while in detention, that he needed regular inpatient treatment at least twice a year, that his treatment should include vasoactive, nootropic and chondroprotective therapy, underwater vertical skeletal extension, massage, physiotherapeutic manipulations, acupuncture, hydro‑physiotherapy and medical gymnastics. It also pointed out that the applicant’s chronic disease related to a dysfunctional disorder or pain had worsened and he could not be treated as an outpatient. Consequently, he should receive inpatient treatment. The above statement was based on medical documents from the Kyiv City Emergency Hospital, the Kyiv City Clinical Endocrinology Centre and the SIZO medical unit for 2010-11 provided by the applicant’s lawyer.30. On 29 September 2011 the applicant was examined by a panel of doctors from the Kyiv SIZO and the chief neurologist of the Kyiv Shevchenkivskyy District Polyclinic no. 2 (“the District Polyclinic”). He was diagnosed with acute right-sided hamstring pain and static/dynamic spinal dysfunction, cervical and lumbar osteochondritis, and dyscirculatory encephalopathy of the first to second degree with venous outflow impairment. He was prescribed outpatient treatment consisting of anti‑inflammatory and pain relief medication. The doctors also recommended that he undergo further examinations, namely a magnetic resonance tomography and a complete clinical blood-count analysis.31. In a letter of 12 October 2011 to the applicant’s lawyer, the chief doctor of the District Polyclinic stated that the applicant was suffering from radiculitis with acute pain syndrome and a spinal dysfunction which warranted his urgent hospitalisation in a neurology unit. According to him, the permanent pain syndrome and the numbness in the right leg indicated a risk of paralysis and might require surgery. He mentioned that adequate treatment could be provided to the applicant in civilian hospitals nos. 9 or 18 in Kyiv, in private hospitals or in the MMCH where the applicant had been treated in the past (see paragraph 27 above). In order to facilitate movement, it was recommended that the applicant use a walking-stick.32. On 3 November 2011, in reply to a request from the applicant’s lawyer, the MMCH stated, inter alia, that the deterioration in the applicant’s chronic diseases could not be effectively treated at the SIZO.33. On 11 November 2011 the applicant was examined by a neurologist from the District Polyclinic who had seen the applicant before. The examination confirmed the previous diagnosis mentioned in paragraph 30 above. The applicant was prescribed outpatient treatment consisting of anti-inflammatory, pain-relief and homeopathic medication. The doctor also recommended that he undergo a magnetic resonance tomography, general blood and urine tests, courses of massage, exercise therapy and physiotherapy.34. On 16 November 2011 the applicant was taken for blood and urine tests.35. On 21 November 2011, in reply to a request from the applicant’s lawyer, the chief doctor of the District Polyclinic stated that the results of the applicant’s examination on 11 November 2011 showed that his state of health had not improved since the previous examination of 29 September 2011. It was also stated that the doctor’s recommendations that the applicant be provided with treatment and additional examinations had not been fulfilled, and that without timely treatment, the applicant’s state of health could deteriorate.36. On 24 November 2011, in reply to a request from the applicant’s lawyer, the MMCH stated that adequate treatment, as recommended to the applicant, could be achieved only if it was combined with the application of both medicines and physiotherapy.37. On 21 December 2011 the trial court informed the parties concerned that it did not object to the applicant undergoing [inpatient] neurological treatment [at the MMCH].38. As it appears from correspondence between the prosecution authorities in January 2012, the head of the prison escort service refused to arrange the applicant’s transportation to the MMCH.39. On 11 January 2012 the applicant was examined by a panel of doctors from the SIZO and the District Polyclinic. He was diagnosed with the same diseases and prescribed the same treatment as mentioned in paragraph 30 above. The doctors recommended a magnetic resonance tomography, another general analysis of his blood and urine, courses of massage, physiotherapy, up to two litres of fluid intake per day, and supervision by a doctor. On the same date the analyses of the applicant’s blood and urine were carried out as recommended.40. In a letter of 17 January 2012 to the applicant’s lawyer, the chief doctor of the District Polyclinic stated that the applicant’s examination of 11 January 2012 had established a deterioration in his health in comparison with his earlier examinations of 29 September and 11 November 2011. Namely, the muscle atrophy was getting worse. Moreover, during the period from 29 September 2011 to 11 January 2012, the recommendations of the neurologist had been implemented only in part. For maximum efficiency, the applicant’s treatment should include medication, physiotherapy and other treatment methods. According to the chief doctor, without timely treatment, the applicant’s spinal dysfunction might deteriorate.41. On 17 January 2012 the applicant underwent a magnetic resonance tomography of the thoracic spine and an X-ray of the lumbosacral region of the spine.42. The applicant was further examined on 23 February 2012 by a panel of doctors from the SIZO and the District Polyclinic. He was diagnosed with generalised cervical and lumbar osteochondritis with intervertebral disc protrusion, protrusion of discs in the form of radiculopathy, insignificant pain syndrome, vertebral body haemangioma, and dyscirculatory encephalopathy. He was prescribed anti-inflammatory homeopathic medication, and drugs to support his nerve tissue and to restore and protect his cartilage. He was also recommended massages and physiotherapy.43. On 29 March 2012 the applicant was seen by a panel of doctors who generally confirmed the previous diagnoses. According to them, there was no need to provide the applicant with neurosurgery. He was prescribed exercise therapy, further physiotherapy and arterial pressure monitoring. The applicant himself stated that the medical treatment prescribed on 23 February 2012 had had a positive effect on his health. He also mentioned that he was capable of a wider range of movements and had experienced a reduction in pain.44. On 6 April 2012 the applicant was examined by a panel of doctors from the SIZO and the District Polyclinic who concluded that his health was satisfactory and that he did not require inpatient medical treatment outside the SIZO.45. On 14 and 24 May 2012 the applicant was examined by a panel of doctors who reiterated their previous diagnosis (see paragraph 42 above) and recommended remedial gymnastics and vitamins. They recommended that he undergo an MRT scan and electro-neuromyography (“ENMG”). Based on the results of those tests, a further treatment plan would be specified.46. On 7 June 2012 the MRT and ENMG tests were carried out.47. On 13 June 2012 the applicant was examined by a neurologist who prescribed relevant treatment. That treatment started on 22 June 2012. The applicant received medicines bought by his wife. According to the applicant, the medicines, contrary to the doctors’ recommendations, were given to him irregularly.48. After his release from detention (see paragraph 21 above), from 16 August until 14 September 2012 the applicant underwent inpatient treatment in the MMCH. According to the applicant, as a result of the treatment provided to him, which consisted of medicines and massages, his state of health significantly improved.THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION49. The applicant complained that he had not had an access to adequate medical treatment in detention and that he had been confined in a metal cage during the court hearings which had taken place in 2010-11. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityMedical treatment of the applicant50. The Government submitted that the medical treatment provided to the applicant had been compatible with the requirement of Article 3 of the Convention.51. The applicant reiterated his complaints outlined in the application form, that he had not been provided with adequate medical treatment while in detention, in particular that he had not been transferred to the MMCH for treatment.52. The Court reiterates that, in accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see, for instance, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‑VI).53. However, the Court has held that Article 3 of the Convention cannot be interpreted as ensuring that every detainee should receive medical care at the same level as “in the best civilian clinics” (see Mirilashivili v. Russia (dec.), no. 6293/04, 10 July 2007). It has further held that it is “prepared to accept that, in principle, the resources of medical facilities within the [prison] system are limited compared to those of civil clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007). On the whole, the Court takes a flexible approach in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).54. The thrust of the applicant’s complaint in the present case concerns the lack of effective medical treatment for his spinal condition. Furthermore, there is no dispute between the parties regarding the long-lasting and chronic nature of the applicant’s medical condition and the fact that he had been undergoing medical treatment in the MMCH twice a year (see paragraph 23 above).55. The Court observes that the SIZO authorities demonstrated prompt reaction to the deterioration in the applicant’s health, having placed him in the Kyiv Emergency Hospital for an in-patient treatment (see paragraph 26 above). They obtained the applicant’s medical history regarding his treatment at the MMCH (see paragraph 29 above).56. The Court notes that the applicant was under constant supervision of the panel of doctors who had examined him regularly and prescribed relevant treatment and medical tests which were subsequently undertaken (see paragraphs 30, 33, 39, 42, 43, 44, 45 and 47 above).57. It is true that the MMCH recommended the applicant to undergo an inpatient treatment outside the SIZO. The Court notes in this connection that the applicant did not demonstrate that his health significantly deteriorated as a result of the alleged inactivity. The Court also observes that the treatment provided to the applicant at the SIZO gave its positive effect (see paragraphs 43 and 44 above). The Court draws attention to the fact that the doctor’s suggestion for a surgery made in October 2011[1] appeared to be no longer necessary in March 2012.58. As to the applicant’s contention that the authorities failed to transfer him to the MMCH where he had received treatment twice a year before his detention, the Court, referring to its considerations mentioned in paragraphs 56 and 57 above and in the absence of any documentary evidence, cannot conclude that the refusal of the applicant’s transfer to the MMCH led to a significant deterioration of his health (see, mutatis mutandis, Koktysh v. Ukraine, no. 43707/07, § 103, 10 December 2009, and Pivovarnik v. Ukraine, no. 29070/15, § 40, 6 October 2016).59. In the light of the foregoing, the Court finds that the applicant has not sufficiently substantiated his complaints to show that the alleged inadequacy of the medical assistance provided in detention exceeded the necessary threshold of severity under Article 3 of the Convention.60. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.The applicant’s confinement in a metal cage61. The Court further notes that the reminder of the applicant’s complaint under Article 3 of the Convention, notably his confinement in a metal cage during the court hearings, is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.Merits62. The applicant submitted that his confinement in a metal cage during the hearings before the trial court, notably on 24 August, 18 and 28 October, and 20 December 2010, and 18 January, 2, 4, 16, 29 and 31 March, 7, 11, 18 and 19 April, 13 and 18 May, and 16 June 2011, had been an unnecessary and humiliating measure.63. The Government contended that the applicant’s confinement in a metal cage during the hearings had been in accordance with the domestic legislation.64. The Court has held that holding a person in a metal cage during a trial – having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – constitutes in itself an affront to human dignity in breach of Article 3 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)).65. The Court observes that holding defendants, even those who have not been convicted, in metal cages during a court hearing appeared to be standard procedure in Ukraine (compare Titarenko v. Ukraine, no. 31720/02, §§ 41 and 63-64, 20 September 2012; and, as a most recent authority, Korban v. Ukraine, no. 26744/16, §§ 132-36, 4 July 2019). It further notes that in the present case the Government did not dispute the fact that the applicant had been held in a metal cage during the hearings and did not provide any evidence that there had been an actual and specific security risk in the courtroom which required it.66. The Court does not see any reason to depart from its earlier findings in the present case.

Outcome for Article 5: violation