FIFTH SECTIONCASE OF NIKOLISHEN v. UKRAINE(Application no. 65544/11)      JUDGMENT STRASBOURG15 April 2021 This judgment is final but it may be subject to editorial revision.In the case of Nikolishen v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Arnfinn Bårdsen, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 65544/11) 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 Oleg Mykolayovych Nikolishen (“the applicant”), on 12 October 2011;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3, Article 5 §§ 1, 3 and 4, Article 6 § 1 and Article 13 of the Convention, and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 18 March 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the applicant’s complaints under Article 3 that the medical treatment provided to him while in detention had been inadequate; under Article 5 §§ 1 and 3 that his pre-trial detention had been unlawful, unjustified and lengthy; under Article 5 § 4 that he had not had the right to a meaningful review of the lawfulness of his detention; under Article 6 § 1 that the criminal proceedings against him had been unreasonably lengthy; and under Article 13 that he had not had an effective domestic remedy in respect of the above complaints.THE FACTS2. The applicant was born in 1981 and lives in Kyiv. He was represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.3. The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.4. The facts of the case, as submitted by the parties, may be summarised as follows.Criminal proceedings against the applicant and his detention5. The applicant has been a practising lawyer since 2008. On 27 January 2011 he was arrested by the police on suspicion of car theft. On the same day a police investigator instituted criminal proceedings no. 02‑19259 against him in respect of the above charge.6. Under the provisions of the domestic legislation (see paragraph 31 below), criminal charges against a practising lawyer could only be brought by the Prosecutor General, the Deputy Prosecutor General, the Crimea Prosecutor, the regional prosecutor or the Kyiv City prosecutor. In this connection, the applicant challenged the decision to institute criminal proceedings against him, arguing that it did not comply with the requirements of the law.7. On 28 January 2011 the Darnytskyy District Court of Kyiv (“the District Court”) authorised the applicant’s pre-trial detention. The relevant judicial decisions stated, without providing specific details, that the applicant was accused of a serious crime and might otherwise escape and hinder the investigation or continue with his criminal activity. The applicant was placed in the Kyiv Pre-trial Detention Centre (“the SIZO”).8. On 11 February 2011 new charges in respect of additional car thefts were brought against the applicant by the acting Kyiv City prosecutor. The new charges along with those brought in the context of proceedings no. 02‑19259 were joined into a single set of criminal proceedings.9. On 18 March 2011 the District Court extended the applicant’s pre‑trial detention within the joint criminal proceedings for the same reasons as those mentioned in paragraph 7 above.10. In the meantime, on 4 March 2011, the District Court had found that the institution on 27 January 2011 of criminal proceedings no. 02-19259 against the applicant had been unlawful owing to the failure to comply with the requirements of the procedural law. That decision was upheld on appeal on 6 April 2011 and became final. The applicant did not provide any information regarding whether he had sought redress at the domestic level in connection with the decision.11. Subsequently, the applicant’s detention within the joint criminal proceedings was extended by the domestic courts a number of times. The courts’ decisions extending the applicant’s detention were based mainly on the grounds that the case was complex and the proceedings still pending, that the applicant was accused of serious crimes, that he might evade investigation and trial and obstruct the establishment of the facts in the case, and that he might continue committing crimes. No further details were given by the courts.12. On 26 May and 24 July 2011 the courts, when extending the applicant’s pre-trial detention, observed that the investigator’s request for the extension of the applicant’s detention had been insufficiently reasoned and that overall progress in the investigation had been slow.13. On 30 November 2012, in the course of the trial, the trial court altered the preventive measure in respect of the applicant to release on bail, subject to him depositing the amount of bail in the court’s bank account. Bail was set at 76,500 Ukrainian hryvnias (approximately 7,365 euros). The decision was not subject to appeal.14. In August, October and November 2012, in the course of the trial, the applicant lodged applications to be released, referring, inter alia, to his deteriorating state of health, but to no avail.15. On 3 December 2012 the applicant’s defence lawyers deposited the amount of bail in accordance with the trial court’s decision, and on the same day the applicant was released from detention.16. At the time the parties replied to each other’s observations before the Court (June 2017), the criminal proceedings against the applicant were still pending, having been heard by courts at two levels of jurisdiction. The parties did not inform the Court of any further developments in the applicant’s case.Medical treatment provided to the applicant17. On 22 July 2011, while in the SIZO, the applicant was diagnosed with a sebaceous cyst. He was advised to undergo a special examination on that account, which could not be performed in the SIZO as no appropriate facilities were available.18. In a letter of 22 November 2011 addressed to the applicant’s defence lawyer, the SIZO authorities confirmed the above diagnosis (see paragraph 17 above) and noted that the applicant had been advised to undergo non-urgent surgery in connection with his condition. The SIZO also stated that the applicant could be treated at the prison hospital only after the court sentence against him had become final.19. On 26 December 2011 the SIZO authorities reported that the applicant had been diagnosed with lymphoma and liver, digestive and urinary diseases. In order to clarify the lymphoma diagnosis, the applicant required a biopsy, to be performed outside the SIZO. There is no information in the case file as to whether that examination was carried out.20. On 22 February and 16 March 2012 the SIZO authorities provided similar information about the applicant’s health to that mentioned in paragraphs 17 and 19 above.21. On 13 April 2012 the SIZO authorities informed the applicant’s defence lawyer that the applicant had been diagnosed, in addition to the diseases identified earlier, with diseases affecting his heart and spine and hepatitis C. They noted that the applicant had been receiving inpatient treatment in the SIZO. The nature of the treatment was not specified.22. On 28 April 2012 the SIZO authorities confirmed that the applicant had been undergoing inpatient treatment in the SIZO, consisting of taking a number of medicines. Furthermore, they noted that there was no oncologist or haematologist on the SIZO staff. Performing a biopsy was not possible in the SIZO either.23. On 23 May 2012 the SIZO authorities reported that in addition to the diseases identified previously, the applicant had been diagnosed with pyelonephritis. The applicant was again advised to have non-urgent surgery on account of his lymphoma.24. On 7 July 2012 the SIZO authorities reported that on 6 June 2012 the applicant had been diagnosed with suspected non-Hodgkin lymphoma. A sternal puncture was performed. In order to clarify the applicant’s diagnosis, it was recommended that a further sternal puncture be performed.25. After performing the sternal puncture again, on 13 August 2012 the doctor made a provisional diagnosis of non-Hodgkin lymphoma. It was recommended that the applicant have additional tests in order to clarify the diagnosis and put in place a treatment strategy.26. Following the applicant’s complaints that he had received inadequate medical treatment in detention, the Kyiv City prosecutor’s office conducted an inquiry. On 30 August 2012 a report was drawn up stating that the applicant’s state of health was serious and that he required urgent medical treatment in a specialist medical facility. On the same day the prosecutor’s office instructed the SIZO to transfer the applicant to a specialist medical facility for treatment.27. On 19 September 2012 the SIZO authorities wrote a letter to the applicant’s defence lawyer, the content of which made it clear that the applicant had remained in the SIZO. Following the deterioration of the applicant’s state of health, on 18 October 2012 he was transferred to the hospital in Bucha Prison no. 85 for treatment.28. According to the information provided by the hospital in Bucha Prison no. 85 on 27 and 29 November 2012, the applicant had non-Hodgkin lymphoma, chronic hepatitis C, chronic pancreatitis, chronic pyelonephritis, urinary stone disease and arthrosis. It was noted that the applicant was in a life-threatening condition. He was advised to undergo an examination and treatment in a specialist medical facility.29. On 22 April 2013, after his release from the SIZO (see paragraph 15 above), the applicant was recognised as a person suffering from a category 2 disability. The second category is the intermediate one, the first constituting the severest level of disability and the third the least severe. It was also recommended that the applicant continue inpatient treatment in a specialist medical facility.RELEVANT LEGAL FRAMEWORK30. Article 154-1 of the Code of Criminal Procedure (as in force at the material time) governing the procedure for applying the measure of bail can be found in Koval v. Ukraine, no. 65550/01, § 60, 19 October 2006.31. Section 10(5) of the 1992 Bar Act (as in force at the material time) provided that criminal charges against a practising lawyer could only be brought by the Prosecutor General, the Deputy Prosecutor General, the Crimea Prosecutor, the regional prosecutor or the Kyiv City prosecutor.32. Section 1 of the 1994 Compensation Act provides that a citizen is entitled to compensation for damage caused, inter alia, as a result of being unlawfully charged, arrested and placed and held in custody.THE LAWALLEGED VIOLATION OF ARTICLEs 3 and 13 OF THE CONVENTION33. The applicant complained that he had not had access to adequate medical treatment while in detention and that he had had no effective domestic remedy in that connection. 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.”Admissibility34. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.MeritsArticle 3 of the Convention35. The applicant reiterated the complaints he had made in his application form, namely that he had not been provided with adequate medical treatment while in detention.36. The Government submitted that the medical treatment provided to the applicant had been compatible with the requirements of Article 3 of the Convention.37. The applicable general principles in respect of medical treatment while in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 112‑22, 29 November 2007), Ukhan v. Ukraine (no. 30628/02, §§ 77‑83, 18 December 2008), Petukhov v. Ukraine (no. 43374/02, §§ 91‑98, 21 October 2010) and Sergey Antonov v. Ukraine (no. 40512/13, §§ 70‑75, 22 October 2015).38. The thrust of the applicant’s complaint in the present case concerns the lack of adequate medical treatment for his lymphoma, in particular the authorities’ failure to carry out additional medical examinations and tests to clarify the diagnosis, and to start appropriate treatment.39. There is no dispute between the parties regarding the seriousness of the applicant’s medical condition, or that the authorities were aware of it from July 2011 onwards (see paragraph 17 above).40. According to the available documentary evidence, the doctors changed the applicant’s diagnosis a number of times. Initially they diagnosed the applicant with a sebaceous cyst (see paragraph 17 above), then they diagnosed him with lymphoma (see paragraph 19 above), and finally they diagnosed him with non-Hodgkin lymphoma (see paragraph 21 above).41. As they were uncertain as to the applicant’s diagnosis, they recommended additional examinations in order to clarify the diagnosis and put in place a treatment strategy. However, those examinations were performed only in July and August 2012 (see paragraphs 21-25 above).42. The Court notes that the Government did not explain why additional examinations to clarify the applicant’s diagnosis were not performed until the summer of 2012, despite the repeated recommendations of doctors. In this connection, the Court draws attention to the fact that it took the authorities more than a year to clarify the applicant’s diagnosis, during which time he was not provided with appropriate treatment and also acquired new, additional, diseases (see paragraphs 21 and 23 above).43. Furthermore, the Court notes that the authorities acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s oncological disease (see paragraph 19 above).44. Another issue the Court cannot overlook is the authorities’ unexplained reluctance to transfer the applicant to a specialist medical facility following the instruction of the prosecutor’s office (see paragraph 23 above). The transfer finally took place one and a half months after the applicant’s state of health had deteriorated (see paragraph 27 above). Lastly, the Court cannot overlook the fact that the applicant was recognised as having a disability after his release from the SIZO and that a recommendation was made for him to continue inpatient treatment in a specialist medical facility (see paragraph 29 above).45. In the light of the foregoing and on the basis of the parties’ submissions, the Court finds that the medical care provided to the applicant was not appropriate to his condition and was not accompanied by a comprehensive treatment strategy. As a result of the inadequacy of the medical care provided to him, the applicant endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and his dignity was undermined.46. The Government disputed the applicant’s submissions and argued that there had not been a violation of Article 13 of the Convention.48. The Court reiterates 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 the lack of medical treatment (see, among other authorities, Sergey Antonov, cited above, § 96, with further references). It sees no reason to decide otherwise in the present case.49.

Outcome for Article 3: violation