ITEMID: 001-119382
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF TYMOSHENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority;Reasonably necessary to prevent fleeing);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1-c - Bringing before competent legal authority)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 7. The applicant, born in 1960, is serving a prison sentence in Kachanivska Penal Colony no. 54 in Kharkiv. She is currently hospitalised in the Central Clinical Hospital of the State Railway in Kharkiv.
8. The applicant is the leader of the Batkivshchyna political party and of Yulia Tymoshenko’s Bloc.
9. During the periods from 24 January to 8 September 2005 and from 18 December 2007 to 3 March 2010, she exercised the function of Prime Minister of Ukraine. Before becoming Prime Minister, the applicant was one of the leaders of the Orange Revolution, during which she had openly criticised the then rival presidential candidate Victor Yanukovych.
10. In the parliamentary elections held in 2006 Yulia Tymoshenko’s Bloc was victorious in fourteen regions in the country (out of twenty-seven) and polled 22.27% nation-wide.
11. In the 2007 parliamentary elections Yulia Tymoshenko’s Bloc polled 30.71% throughout Ukraine and received 156 seats (out of 450) in Parliament.
12. The applicant was the main opponent of President Victor Yanukovych in the presidential election held in 2010. In the second round of the election she won the support of 45.47% voters, while Mr Yanukovych won 48.95%.
13. At the time of the introduction of the application, the applicant was the most visible opposition politician and the head of one of the strongest opposition parties in Ukraine.
14. On 11 April 2011 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant on suspicion of abuse of power under Article 365 § 3 of the Criminal Code. The applicant was suspected of exceeding her authority and abusing her office in ordering the head of the State-owned enterprise Naftogaz of Ukraine to sign an agreement with the Russian enterprise Gazprom providing for the importation of natural gas at a price of 450 United States dollars (USD) per 1,000 cubic metres, which had caused the State to suffer considerable financial losses.
15. On 25 May 2011 the pre-trial investigation was officially completed and the applicant was given fifteen working days to read the case file. At the same time, she was called almost daily to attend the GPO’s premises for questioning concerning the other criminal cases which had been initiated against her in the meantime. The case file at that time comprised some 4,000 pages in fifteen volumes.
16. On 17 June 2011 the case was referred to the Kyiv Pecherskyy District Court (hereinafter “the Pecherskyy Court”) for trial.
17. In a judgment of 11 October 2011 the court found the applicant guilty as charged. It sentenced her to seven years’ imprisonment and imposed a three-year prohibition on exercising public functions on her.
18. On 23 December 2011 the Kyiv Court of Appeal upheld the first-instance judgment.
19. On 29 August 2012 the Higher Specialised Court delivered a final judgment in the case confirming the applicant’s guilt and sentence.
20. Earlier, in 2010, two other criminal cases – one concerning the misuse of funds allocated for the purchase of ambulances and the other concerning funds received by Ukraine within the framework of the Kyoto Protocol – had been opened against the applicant under Articles 364 and 365 of the Criminal Code.
21. In July 2011 the Ukrainian Security Service re-opened another criminal case against the applicant, on suspicion of financial fraud during her tenure as head of the company United Energy Systems of Ukraine in the 1990s, which had been closed in 2001.
22. On 7 December 2011 the investigator asked the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) to order the applicant’s remand in custody in order to facilitate the further pre-trial investigation of this case.
23. On 8 December 2011 the court granted that motion following two hearings conducted in the SIZO medical unit, during which the applicant was lying in bed because of pain. The hearings were interrupted three times for her emergency treatment with painkillers.
24. On 21 December 2011 the Kyiv Court of Appeal upheld the above ruling.
25. On 29 March 2012 the applicant was officially indicted.
26. During the initial stages of the pre-trial investigation and the trial concerning the gas agreement the applicant was at liberty, subject to an undertaking not to abscond.
27. Between 29 June and 4 August 2011 the Pecherskyy Court held sixteen hearings, in all of which the applicant participated.
28. On 5 August 2011 the hearing started at 9.00 a.m. The applicant was late and her counsel asked for a half-hour break. The applicant arrived seven minutes later. The court resumed the hearing at 9.30 a.m. The applicant explained that she was late due to her exhaustion. The previous hearing had ended at 8:02 p.m. the day before and she had had to prepare for the next hearing late at night.
29. During the hearing the judge heard the incumbent Prime Minister, Mr Azarov. The applicant’s questions were almost all dismissed by the judge, but allegedly made the witness overly nervous and upset. It is not clear whether the applicant asked the questions herself or through her lawyers.
30. After the cross-examination of this witness, a representative of the GPO asked the judge to order the applicant’s remand in custody on the grounds that she had obstructed justice and had demonstrated her disrespect for Judge K. and those taking part in the hearing.
31. Judge K. granted the GPO’s motion on the same day and ordered the applicant’s detention for an undetermined period, with reference to Article 148 of the Code of Criminal Procedure. His reasoning was as follows:
“Both during the pre-trial investigation stage and the trial the defendant has systematically been violating court procedures, has been ignoring the presiding judge’s orders, has been showing contempt towards the participants in the hearing and the court, has been knowingly protracting the judicial examination of this case, and has been performing acts aimed at impeding establishing the truth in the case, in particular, by hindering the questioning of witnesses.”
32. He added that the applicant had refused to give any information about her domicile (referring to the case file). The letters sent to the address indicated by her had been returned by the post office. The applicant had also repeatedly refused to sign notices informing her of scheduled hearings. As noted in the ruling, it was final, no appeal lying against it.
33. The applicant was detained in the court room and was transferred to Pre-Trial Detention Facility no. 13 in Kyiv (“SIZO no. 13”).
34. In the course of subsequent court hearings held on 8, 10, 11, 15, 16, 18, 22, 25, 26, 29 and 31 August and on 1, 2, 5, 6, 7 and 21 September 2011 the applicant and her defence counsel repeatedly lodged requests to have her detention replaced with another preventive measure. They submitted that the applicant had complied with the obligation not to leave town, had participated in all the investigative measures as required and had attended all the court hearings. The applicant further contended that there was no legal basis for remanding her in custody as punishment for her supposed lack of respect towards the presiding judge. She also complained that her detention was contrary to the safeguards of Article 5 of the Convention and should be replaced by a less intrusive preventive measure. Numerous letters of personal guarantee from prominent public figures including clergy, artists, writers, journalists and scientists were addressed to Judge K. with a request to release the applicant under their personal commitment to ensure her attendance at court. A proposal of bail in the amount of one million Ukrainian hryvnias was also made.
35. The Pecherskyy Court dismissed all the requests for the applicant’s release with reference to its reasoning given in the ruling of 5 August 2011. Each subsequent dismissal was based on the earlier dismissals. The court stated, inter alia, that the applicant had continued to show disrespect for the court and the trial participants, and had not followed the instructions of, and had not responded to remarks made by, the presiding judge.
36. On 12 August 2011 the Kyiv City Court of Appeal examined the applicant’s appeal against the detention order, in which the applicant had claimed that her detention was unlawful and unlimited in duration. The appellate court dismissed it without examination of the merits with the following reasoning:
“... Pursuant to Article 274 of the Code of Criminal Procedure (“the CPC”), a court may change a preventive measure during its examination of the case. When choosing remand in custody as a preventive measure, the court shall be guided by the relevant provisions of Chapter 13 of the CPC.
Article 274 of the CPC does not provide, in substance, for the right to challenge a court’s decision about a change of preventive measure during the examination of a criminal case.
During the examination of the present criminal case, allowing the prosecutor’s motion on 5 August 2011 the Kyiv Pecherskyy District Court changed the preventive measure in respect of the defendant Yu. Tymoshenko from an undertaking not to abscond to remand in custody. This decision has been challenged on appeal.
However, according to the CPC, rulings on selection, change or discontinuation of a preventive measure delivered during the judicial examination of a case are not amenable to ordinary appeal. It follows that there are no grounds for accepting [the applicant’s] appeal against the decision of 5 August 2011 for examination.”
37. In its verdict of 11 October 2011 convicting the applicant (see paragraph 17 above), the Pecherskyy Court decided to keep her in detention as a preventive measure until her conviction became final.
38. On 29 November, 1 and 20 December 2011 the applicant lodged further requests for release referring, in addition to her earlier arguments, to the deterioration of her health.
39. The applicant was detained in SIZO no. 13 from 5 August to 30 December 2011.
40. The applicant was placed in cell no. 242 together with two other detainees. In her original application, she indicated that the size of the cell was about fourteen square metres, while in her observations on the admissibility and merits she stated that its size was sixteen square metres. According to the Government, the cell measured 16.4 square metres.
41. The applicant also maintained that the cell had a single window which could not be opened, being too high to be reached by the inmates, and was unventilated which, taking into account the fact that her two cellmates had smoked, had caused serious problems for her health. According to the Government, the applicant had been able to open the window, which had measured 1.5 by 1.5 metres, and one of her cellmates had not been a smoker while the other had only smoked outside the cell during her outdoor walks. Moreover, the cell had been equipped with a ventilation system.
42. According to the applicant, the cell had lacked hot water and had often not had a supply of cold water, and she had not been provided with any drinking water. The Government indicated that the cell had been equipped with a supply of hot and cold water, a separate toilet and a washing stand with a tap and had been equipped with central heating. They added that during her time in the SIZO, the applicant had received 316 litres of drinking water in 82 containers.
43. According to the applicant, the cell had not been sufficiently lit, had been damp and had had a pungent smell and mould growing in it. The light in the cell could not be switched off and had been kept permanently on. The Government specified that two lamps each consisting of two 40-watt bulbs (a total of four 40-watt bulbs) had been used for lighting during the day and one lamp with a 60-watt bulb for lighting during the night.
44. The applicant stated that at the time of introducing her application to the Court, on 11 August 2011, she had been entitled to take a shower once per week and, according to her, the bedding in her cell was not regularly changed. In her observations on the admissibility and merits, she indicated that she had been allowed to shower twice per week. The Government observed that while, according to the general rule, each detainee was provided with access to bathing facilities for thirty minutes once every seven days, the applicant had been permitted to have a shower several times a week. They further pointed out that all detainees were provided with bed linen. They noted that as of 5 August 2011, the remaining stock of new bedding in the SIZO included 444 blankets, 545 pillows, 8,216 sheets, 6,179 towels and 4,473 pillowcases. The applicant, having received a total of 278 items of bed linen from her relatives, had never asked the SIZO administration to have her bed linen changed.
45. The applicant noted that the Government had not mentioned the number of inmates who had been present at the relevant time in respect of the quantity of bed linen, and what bed linen had been available to her. She maintained that she had had to rely exclusively on her relatives in order to be provided with drinking water, bed linen, food and other essentials.
46. On 25 November 2011 the applicant was temporarily moved to cell no. 300, where she stayed until 29 November 2011 when she was transferred to a newly refurbished cell, no. 260, in the medical unit. According to her, there had been no heating or hot water supply in cell no. 300.
47. Between 29 November and 6 December 2011 an ad hoc CPT mission visited Kyiv SIZO no. 13. On 30 November 2011 they paid a visit to the applicant. According to her, that visit was the reason for her transfer to cell no. 260 and the improvement of the conditions of her detention.
48. On the days of court hearings, which were, according to the applicant, conducted almost daily, she was woken up at 5 a.m. in order to be transported to the court by 7 a.m. As further submitted by her, she had had to spend, before and after the hearings, two or more hours in a room measuring about 1.2 x 1.4 metres without a window. The Government denied this. After the hearings, the applicant had returned to her cell no earlier than 9 pm. On these days she had not been given time for exercising or an outdoor walk.
49. In her original application, the applicant stated that she had not been able to eat any food provided by the SIZO due to her chronic gastroenterological diseases and allergies. After she had eaten a few meals there, her chronic gastroenterological diseases had worsened and she had experienced constant pain in her stomach. The applicant also argued that her daily court hearings had left her no time to seek medical assistance while in the SIZO. In addition, she had not been allowed to take her food with her to the court. As a result, she had spent up to sixteen hours without any food on days when she had been required to attend court hearings.
50. In her observations on the admissibility and merits of the application, the applicant stated that she had not had an assigned room or time to consume food in the court building and had found it humiliating to do so in front of the public including journalists, reporters and photographers. According to her, she had been held in the courtroom for the entire hearing and had only been able to leave it to use the toilet facilities. As a result, she had remained without any food or drink for entire court hearings, which had lasted for up to fourteen hours.
51. According to the Government, before the start of the court hearings, the applicant had been held in the courtroom where her case was to be examined. The Government also noted that, contrary to the applicant’s claims, she had been given time for outdoor walks and physical exercise on the days of court hearings. In fact, when she had been escorted back to the SIZO after court hearings before 2 p.m., she had been able to go for an outdoor walk in accordance with the routine daily schedule. In other instances, the applicant had usually refused to have an outdoor walk.
52. The Government further stated that the applicant had brought various foodstuffs and personal items of clothing back to the SIZO with her after each court hearing on 31 August, 1, 2, 5, 7 and 8 September 2011, which indicated that she had been able to receive and consume food on the days of court hearings. Consequently, the SIZO administration had not prepared a packed lunch to be taken by the applicant upon being escorted to the courtroom.
53. The Government also observed that the applicant had received substantial food parcels after her arrival in the SIZO. From 5 to 11 August 2011, she had been provided with food in compliance with legal requirements. Subsequently, from 11 August 2011 onwards, the applicant had officially refused to consume food prepared in the SIZO and had indicated that she would only accept food delivered from her home. The Government noted that during the period from 5 August to 22 December 2011, the applicant had received 82 parcels including, in total, 60 eggs; 605 dietary food items; 224 food items with a high fat content; 202 vegetables and pieces of fruit; and 316 litres of drinking water.
54. The Government noted that the applicant had refused to consume food prepared in the SIZO which had, therefore, been unable to provide her with a special diet. Moreover, despite her contention that her doctors’ recommendations did not allow her to eat, in particular, eggs and food items with a high fat content, the food delivered to her in the parcels suggested that the applicant had actually consumed a great number of prohibited food items.
55. The applicant stated that due to her chronic illnesses, her personal physician had insisted on a strict diet, excluding any traces of eggs, meat or fatty foods. In order to prevent allergies the applicant’s physician had also advised her to limit her exposure to toxic compounds, including tobacco smoke, disinfectants and plastic utensils. She complained of sudden subcutaneous haemorrhages, acute pain in her stomach and throat, the exacerbation of chronic illnesses, including chronic gastritis, chronic pancreatitis, intestinal dysbiosis, adenomyosis of the uterus, grade 2 nodular goitre, insomnia, relapsing urticaria caused by a variety of allergic reactions, and severe drug and food (egg) allergies.
56. On 10 August 2011 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government the necessity of her release given the alleged risk to her life inherent in her detention.
57. On 16 August 2011 the Court rejected this request.
58. On 19, 25 and 29 August and on 1 and 2 September 2011 Judge K. and the SIZO authorities rejected the applicant’s requests for a medical examination by doctors whom she trusted. Instead, the applicant was offered a medical examination by doctors assigned by the Ministry of Public Health. She refused the offer.
59. According to the Government, the applicant was examined by doctors from the SIZO medical unit upon her arrival there on 5 August 2011 but refused to undergo a detailed medical examination. On 6 August 2011 she refused to be seen by a generalist, a psychiatrist, and a dentist, to have her blood pressure measured, to undergo an electrocardiogram, a fluorography examination, and blood and urine tests. She maintained her refusal on 12 August 2011.
60. On 16 August 2011, having returned from a court hearing to the SIZO, the applicant complained of a build up of fluid in the cavity of her left elbow. She was diagnosed with a haematoma under the skin of the cavity of the left elbow with an undetermined cause. She insisted on undergoing tests in an independent laboratory.
61. On the following day the applicant was examined by the head of the SIZO medical unit, who established that her state of health had not changed. The applicant refused to undergo a blood test in the SIZO and insisted that the test be carried out in an independent laboratory in the presence of her personal doctor.
62. On 18 August 2011 the applicant complained of newly discovered haematomas on her body but refused to undergo the suggested medical examination. She was advised to undergo laboratory tests but she refused to do so without the presence of her personal doctor, Dr P., and a nurse. She also refused to be seen by an expert panel of doctors appointed by the Ministry of Public Health (“the medical panel”). In the evening on the same day she complained of asthenia, vertigo, dehydration and vomiting.
63. On 19 August 2011 the applicant complained of general asthenia, fatigue, vertigo, areas of swelling caused by a build up of fluid on the lower limbs, a nosebleed and frequent dehydration. According to her, there were no newly discovered haematomas. However, she refused to be seen by the medical panel, insisting on undergoing an examination and laboratory tests in the presence of Dr P. and the nurse.
64. On 20 August 2011 the applicant was examined by the head of the SIZO medical unit, who found that her state of health was satisfactory and that there were no newly discovered haematomas. The applicant refused to undergo a detailed medical examination.
65. She was also seen by the head of the SIZO medical unit on the following day. The doctor confirmed that her state of health was satisfactory. The applicant complained of dehydration and a bleeding nose at night; according to her, there were no newly discovered haematomas but she refused to undergo a detailed medical examination.
66. On 22 August 2011 the applicant agreed to be examined by the medical panel. She complained of the appearance of a petechial skin rash and haematomas and stated that she had twice had a bleeding nose at night without having high blood pressure. The panel agreed that the applicant’s general state of health was satisfactory. The applicant was advised to undergo laboratory tests.
67. On 23 August 2011 she was seen again by the medical panel. Dr P. and her nurse were allowed to join the panel. The applicant refused to undergo a medical examination and confidential laboratory tests but agreed to have her blood clotting time assessed by the Turner method on condition that any biological material be destroyed by incineration. The results showed that her body’s ability to coagulate blood was normal. The applicant was told to eat food full of protein and vitamin C. In the evening she complained of headache and asthenia. She was examined but her blood flow was normal. She was given two tablets of ketanov (ketorolac, an antiinflammatory drug) and her treatment with collagen and ascorutin (vitamin C and flavonoids) was prescribed.
68. On 24 August 2011 the applicant was examined by the head of the SIZO medical unit. She complained of asthenia, vertigo, dehydration and new haematomas, but refused to undergo a detailed examination. In the course of examinations carried out on 25 and 26 August 2011 no serious change in her state of health was established.
69. On 27 August 2011 the applicant was offered an examination by the medical panel in the presence of Dr P. and the nurse. She refused to undergo the examination or laboratory tests in two laboratories outside the SIZO and insisted on a confidential examination by doctors of her choice and on a laboratory examination without the medical panel being informed of the results.
70. On 30 August 2011 the applicant was again advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She drew attention to the appearance of a rash on the lower third of her chest, but refused to undergo a further medical examination or laboratory tests.
71. On 31 August and on 1 and 2 September 2011 she was examined by the head of the SIZO medical unit, who found no serious changes in her state of health.
72. On 3 September 2011 the applicant was advised to undergo examination by the medical panel in the presence of Dr P. and the nurse. The applicant refused to do so.
73. On 6 September 2011 she maintained her refusal.
74. On 4, 5, 6 and 7 September 2011 she was examined by the head of the SIZO medical unit. Her state of health was found to be satisfactory. The applicant complained of asthenia, headache, dehydration, abdominal pain on an empty stomach and broken sleep but she refused to undergo a detailed examination and insisted on being seen by Dr P. She was told to take pariet (rabeprazole, a drug which slows or stops the production of stomach acid) tablets.
75. The head of the SIZO medical unit visited the applicant again on 8 September 2011. He found no serious changes and added a multivitamin tablet to the applicant’s treatment regimen. On 9, 10 and 11 September 2011 the applicant was advised to continue the indicated treatment.
76. On 12, 13, 14 and 15 September 2011 she continued to be seen by the head of the SIZO medical unit. She complained of pain while swallowing, asthenia, headache, vertigo, intestinal pain and broken sleep. No new haematomas were discovered and the applicant refused to undergo a further detailed examination. She was told to use a nasal spray, gargle with a solution, drink hot drinks and take paracetamol.
77. On 15 September 2011 the applicant was advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She refused to do so.
78. On 17 September 2011 the applicant was consulted by a medical panel composed of experts from the SIZO, the State Prisons Service and the O.O. Bogomolets National Medical University. She complained, inter alia, of coughing, general asthenia and periodic vertigo. She noted the improvement of her state of health after gargling and drinking tea with honey and taking vitamins. She was advised to continue gargling and to consume healthy food and drinks. However, she refused to undergo a more detailed medical examination.
79. On 21 September 2011 the applicant was seen by the medical panel in the presence of Dr P. She complained of general asthenia, periodic vertigo, and right subcostal pain and irritation. The panel confirmed an improvement in her state of health. The applicant refused to undergo a further medical examination. She was advised not to eat fresh vegetables and fruits, but rather to eat them cooked and to exclude dairy products and spicy, salty and sour dishes from her diet. She was also prescribed, inter alia, motilium (domperidone, used to suppress nausea and vomiting) and told to eat no less than four times per day.
80. From 16 September to 3 October 2011 the applicant was examined on a daily basis by specialists from the SIZO medical unit, who established that her state of health had gradually improved and that her catarrhal symptoms had disappeared.
81. On 3 and 4 October 2011 she was examined by the head of the SIZO medical unit, who confirmed that her state of health was satisfactory. The applicant complained of asthenia, headache, vertigo, the periodic appearance of haematomas, dehydration and broken sleep. She refused to undergo a detailed examination. She was prescribed detralex (diosmin, a flavonoid used to treat venous insufficiency), motilium, ascorutin and multivitamins.
82. Between 5 and 11 October 2011 the applicant was examined by the head of the SIZO medical unit on a daily basis. She complained of pain in the lumbar region of the spine that, according to her, had first occurred when walking after she had jumped from a horizontal bar. She was diagnosed with lumbago and prescribed a medicine (pariet) and an intramuscular injection of movalis (a non-steroidal anti-inflammatory drug) was administered. She was also given one tablet of movalis to take after eating.
83. On 12 October 2011 the applicant was prescribed additional treatments of movalis, pariet, donormyl (a sleeping tablet), tetramycin (an antibiotic) and multivitamins.
84. On 13 October 2011 she again complained of pain in lumbar region of the spine. She was prescribed treatment with xefocam (lornoxicam, a painkiller), pariet and multivitamins.
85. On the following day the applicant was examined by the medical panel. She complained of pain in the lumbar region of her spine, but refused to be examined in detail. Manual therapy was carried out.
86. From 14 October to 5 November 2011 the applicant continued to be examined by the head of the SIZO medical unit on a daily basis. The medical treatment continued in accordance with the previous recommendations, with some additional treatment being provided.
87. On 18 October 2011 she was examined by the medical panel. She complained of pain in the lumbar region of her spine. From 18 to 28 October 2011 she was provided with massage and medicinal treatment.
88. In the meantime, on 20 October 2011, the applicant had been examined again by the medical panel. She confirmed that the pain in the lumbar region of the spine had decreased. The doctors noted an improvement in her general state of health and advised her to continue the prescribed treatment (xefokam and dolobene, a gel containing ibuprofen). The applicant, however, refused to take the prescribed medicines.
89. The medical panel also examined the applicant on the next day. She stated that the pain in the lumbar region of the spine had decreased. The doctors confirmed an improvement in her state of health and advised her to continue the prescribed treatment (xefokam, dolobene).
90. On 24 October 2011 the applicant was examined by the medical panel. She complained of pain in the lumbar region of the spine. She was given an intramuscular injection of xefokam and dolobene.
91. On a daily basis from 25 to 28 October 2011 the applicant continued to be under the supervision of the medical panel, which found that her state of health had improved. She continued to refuse to undergo further detailed examination.
92. On 5 November 2011 she refused to undergo an x-ray examination.
93. On 7 November 2011 the applicant was examined by the medical panel, which recommended an additional examination and continuance of the prescribed treatment.
94. She was examined again by the medical panel two days later. In addition, she underwent ultrasonic duplex scanning of her lower limbs. She had been previously diagnosed with lumbar osteochondrosis, sciatica on the right side, tonic muscle spasms, serious disturbances of the functions of the spine and right lower limbs and, possibly, spondyloarthrosis and spondyloarthralgia. The panel concluded that the verification of the diagnosis and a determination of the treatment strategy were necessary and an additional examination and additional consultations between experts were therefore needed. However, the applicant refused to undergo the suggested x-ray examination.
95. On 12 November 2011 the applicant was given another prescription of ascorutin and tetramycin.
96. On 14 November 2011 she was examined by the medical panel, but refused to undergo a detailed examination and a blood test.
97. On 16 November 2011 the applicant refused to take tetramycin, which had been prescribed on the same day.
98. On 19 November 2011 the applicant was examined by the medical panel in the presence of Dr P. and her nurse. In order to adjust the treatment previously prescribed, the applicant was advised to undergo a blood test but she refused to do so. The applicant also refused to undergo a detailed examination and receive injections of betamethasone (a steroid with anti-inflammatory and immunosuppressive properties). The medical panel recommended continuing the previous treatment.
99. On 23 November 2011 the applicant underwent an examination (including an MRI scan) of the abdomen. She was advised to provide blood, urine and stool samples for laboratory examination but she refused to do so. The medical panel established no signs of any medical condition affecting her pancreas but detected chronic cholecystitis which had developed after an acute cholecystitis episode, and prescribed chofitol (an indigestion remedy). The applicant was told to continue taking ascorbic acid and rutin, to exclude fatty, fried and spicy foods from her diet and to increase the dosage of the pills she was taking that were intended to remove toxic compounds from her system. The panel noted that the applicant had not fully complied with the previous recommendations.
100. In the course of an examination of 26 November 2011 the applicant complained that after receiving vitamin B injections (milgamma), she had had an allergic reaction. After taking one tablet of telfast (fexofenadine, an antihistamine), the allergic reaction had stopped. According to her, there were no new haematomas on her body. She was prescribed furosemide (a diuretic).
101. From 6 tо 29 November 2011 the applicant was seen daily by the doctors of the SIZO medical unit. She complained of headache, dehydration, discomfort in the epigastric and right subcostal regions and broken sleep, but refused to undergo a thorough examination and stated that she would follow the prescribed treatment at her discretion. During this period, she noted that the pain in the lumbar region of the spine had decreased.
102. On 29 November 2011, at her request, she was transferred to the SIZO medical unit. After an initial examination, she was prescribed treatment with diclofenac (an anti-inflammatory drug), furosemide, sirdalud (a muscle relaxant), diprospan (a corticosteroid), milgamma, pariet, chofitol, ascorbic acid, rutin, and Viprosal B (a pain-relieving ointment). She was also advised to undergo a general and biochemical blood test, coagulogram analysis, to provide urine and stool samples for testing, and was also prescribed a special diet.
103. On 30 November 2011 the applicant was examined by the head of the SIZO medical unit, who diagnosed widespread lumbar osteochondrosis in the form of sciatica on the right side with temporary severe pain but without signs of compressive radiculopathy, and a hemangioma.
104. On 2 December 2011 she was examined by the medical panel in the presence of Dr P. and her nurse. She was advised to undergo a blood test but she refused to do so, continuing to insist on a confidential blood examination outside Ukraine with the involvement of her personal doctor and without the involvement of State representatives.
105. The applicant stated that on 7 December 2011 her lawyer had been in the SIZO medical unit in order to prepare for the appeal hearing. The applicant and her lawyer had not been able to have their meeting in private because she had been unable to move, walk on her own or be seated.
106. On 8 December 2011 the applicant refused to undergo a medical examination by the medical panel which, having examined the available medical documentation, noted that among other illnesses the applicant was suffering from chronic cholecystitis which had developed after an acute cholecystitis episode and that she had not fully complied with the previous medical recommendations.
107. On 12 December 2011 the applicant was again examined by the medical panel. The applicant was advised, inter alia, to continue using Discus Compositum and Traumeel S. (homeopathic ointments designed to reduce joint pain and inflammation), to undergo general and biochemical blood tests, coagulogram analysis and to provide a urine sample for testing. The applicant was repeatedly offered the opportunity to undergo a laboratory blood test, but she refused to do so. The panel again noted that the applicant had not fully complied with the previous recommendations. It was also noted that there was no need for surgery.
108. On 13 and 14 December 2011 the applicant was advised to submit to an examination by a specialist from the Ministry of Public Health and the State Prisons Service, but she refused to do so.
109. On 16 December 2011 the applicant was examined by medical specialists from the State Prisons Service. Based on the results of the report of 12 December 2011 and the information obtained during the medical examination on 16 December 2011, the panel found that there were no medical reasons that would render the applicant’s attendance at the court hearings inappropriate.
110. On 21 December 2011 the applicant underwent an electrocardiogram and an echocardiogram. No heart condition was discovered.
111. On 30 December 2011 the applicant was moved to Kachanivska Colony in Kharkiv to serve her prison sentence. She was held in a cell measuring 37.1 square metres, sharing it with another inmate. The cell was equipped with two PVC windows each measuring 3.5 square metres, providing natural light and aeration of the cell. Artificial lighting was provided by energy-efficient bright tube lamps. The cell was also ventilated mechanically.
112. The cell had a separate shower room measuring 3.5 square metres and a WC of 4.1 square metres. The shower room was equipped, among other things, with a water heater and a washing machine. The applicant therefore had round-the-clock access to hot and cold water and could take a shower at any time. The inventory of the cell included two single wooden beds with orthopaedic mattresses, four sets of bed linen, a sliding-door wardrobe, a kitchen table, a coffee table, two chairs, a coat rack, a bedside table for shoes, and a suite of kitchen furniture with a dishwasher and cabinets. There were also a TV set, an ironing board, a hairdryer, a refrigerator, a microwave oven, an electric kettle and all necessary kitchen utensils.
113. Food was provided in accordance with national regulations. The food was prepared in the dining room of the colony and delivered to inmates in special containers. In addition, the applicant had the right to receive an unrestricted number of parcels containing foodstuffs. By 5 April 2012, the applicant had received thirty such parcels.
114. According to the Government, from the date of her arrival at the colony, the applicant had refused to take daily walks on account of her state of health. As a rule, she had been entitled to daily walks at any time during the day. The exercise yard measured 52 square metres.
115. The applicant stated that due to her state of health, she had requested a crutch and, on 17 January 2012, a walker to assist her in moving on her own, but the administration of the colony had refused to provide her with any walking aids. As a result, the applicant had been unable to walk on her own in her cell, let alone be able to enjoy daily outdoor walks. The colony had not taken any measures such as providing her with a walker or a wheelchair to assist her moving around or to allow her to enjoy being outdoors.
116. According to the Government, on 7 January 2012 the applicant was examined in the regional clinical hospital. She underwent a helical computed tomography scan of her brain, an MRI scan of her jugular spine, lumbosacral spine and neck, and a blood test. On the same date she was examined by medical specialists from Kharkiv National Medical University and the State Prisons Service. Upon those examinations, the previous diagnoses were confirmed as follows: widespread lumbar osteochondrosis in the form of sciatica on the right side, with temporary severe pain but without signs of compression radiculopathy; and hemangiomas of the lumbar spine vertebrae. However, the protrusion of the intervertebral discs in comparison with the previous MRI scan had decreased. It was recommended that the applicant be kept under active observation by the colony doctors, that she have blood pressure checks two or three times per day and her temperature taken twice per day, and an examination by a neurologist and otolaryngologist was scheduled for 10 January 2012. She was also prescribed betahistine (an anti-vertigo drug), detralex and diacarb (acetazolamide, an inhibitor used to treat a variety of illnesses including glaucoma, epileptic seizures and altitude sickness and which also functions as a diuretic); and, in case of necessity, symptomatic treatment, therapeutic exercise and medical massage.
117. On 14 February 2012 the applicant was examined by German doctors from the Charité Hospital in Berlin who recommended, on 17 February 2012, her transfer to a specialised hospital for additional examination and treatment.
118. On 23 February 2012 the applicant underwent additional examinations.
119. On 7 March 2012 a joint meeting of Ukrainian and German doctors took place in order to reach a common approach to the applicant’s treatment. According to the Government, upon the recommendations of the German doctors being received a common plan of comprehensive medical treatment of the applicant was developed. According to the applicant, however, the German doctors were not involved in the discussion and did not sign the recommendations in question.
120. According to Government, on 12, 15, 19, 22 and 26 March 2012 the applicant was offered the opportunity to start the treatment recommended by the German doctors in accordance with the developed plan. However, the applicant refused to undergo that treatment, insisting on her hospitalisation in a civilian hospital, not excluding a German medical institution. She agreed, however, to be hospitalised in a medical institution inspected and recommended by the German doctors.
121. On 14 March 2012 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government that she should be provided with appropriate medical treatment by independent doctors in a specialised institution.
122. On 15 March 2012 the Court applied the interim measure under Rule 39 and requested the Government “to ensure that the applicant receives treatment appropriate to her complaints in an appropriate institutionalized setting”.
123. On 16 March 2012 the Government brought medical equipment from nearby hospitals to the prison. On the same date, the applicant was offered a lumbar puncture in the medical ward. She refused to undergo this procedure on the grounds that it was a surgical procedure which ought to be performed in a surgical operating room and the ward did not offer proper, sterile conditions and lacked appropriate medical equipment.
124. On 15, 22, 24 and 25 March 2012 the applicant submitted written requests for medical treatment and complained about the lack of that treatment to the colony administration. On 26 and 30 March 2012 the head of the administration offered the applicant the opportunity to undergo treatment in the medical unit of the colony and also allowed her to choose between two medical institutions in which to undergo a paravertebral block procedure. The applicant asked to consult the neurologist, Dr P., who had been her doctor in SIZO no. 13 and whose diagnoses had been fully confirmed by the German doctors. The head of the administration refused to allow her to consult Dr P., referring to the conclusions of 7 March 2012 which had allegedly reflected the common position of the Ukrainian and German doctors.
125. On 27 March 2012 the applicant refused to be treated either in the Urgent Medical Treatment and Trauma Centre at the regional clinical hospital or in the M. Sitenko Institute of Spinal and Joint Care, in order to undergo a paravertebral block procedure.
126. The Government noted that on 2 April 2012 the applicant was examined by the medical panel, including the First Deputy Minister of Health and specialists from the O.O. Bohomelets National Medical University and the M. Sitenko Institute of Spinal and Joint Care of the Academy of Medical Sciences. The applicant was prescribed treatment in the Kharkiv Central State Railway Clinical Hospital (“the Central Clinical Hospital”). At the same time, it was explained to her that this institution’s facilities complied with the requirements set out by the medical specialists from Germany. The applicant agreed to undergo this treatment.
127. However, on the next day she changed her mind and explained that the Central Clinical Hospital was not a specialized medical institution meeting the requirements contained in the interim measure ordered by the Court on 15 March 2012. She also noted that she would undergo treatment in the above institution only after the German doctors had confirmed that it was able to provide the treatment recommended by them.
128. On 4 April 2012 the applicant was offered a transfer to the Central Clinical Hospital. She was examined by the medical panel. She was told that the panel had visited the Central Clinical Hospital, had found its premises and equipment satisfactory and had concluded that the hospital provided the best conditions for the applicant’s treatment. The applicant agreed to be treated there provided that the hospital was assessed by the German doctors, who were expected to arrive on 6 April 2012.
129. Between 13 and 15 April 2012 the German doctors examined the applicant and checked the quality of the hospital proposed by the Government. They accepted the cleanliness of the hospital and the sincere attempts of the doctors there to be open, friendly and respectful, emphasising at the same time that in the short time available to them, they had not been able to assess whether the doctors were able to offer the complex underlying treatment needed.
130. On 17 April 2012 the German doctors delivered their report as regards the appropriateness of the Central Clinical Hospital for the applicant’s needs. The report indicated a number of problems with the applicant undergoing the treatment in the Central Clinical Hospital.
131. In a letter of 20 April 2012 sent to the Government at 4.54 p.m. the Court invited the Government to inform it, by 27 April 2012, what steps had been taken by them to comply with the terms of the interim measure ordered on 15 March 2012.
132. At an unspecified time on the same day a medical panel composed of five doctors visited the applicant. A statement issued on the same day reads as follows:
“Members of the International Medical Board ... arrived at Kachanivska Penal Colony on 20 April 2012. Accompanied by the staff of Kachanivska Penal Colony, they entered the room where Yu.V. Tymoshenko was being kept proposing to carry out a medical check-up.
While communicating with Yu.V. Tymoshenko, the board members again, with the use of arguments, convincingly and persistently suggested to her that she finally start inpatient treatment, which had been recommended by the International Medical Board and confirmed again by German health professionals on 13 April 2012, at the Central [Clinical] Hospital, where all necessary conditions had been created to make it possible to administer [the necessary] drugs and physical therapy, [and] to adjust, complement and extend [that treatment] if necessary.
While communicating with the board, the prisoner was sitting at the table. She was in the right mood to talk with the health professionals. She read the report regarding the assessment of the hospital by health professionals which had been handed over by the penal colony management.
Members of the medical board, [having] consulted [the relevant report], thoroughly analysed the conclusions of the German doctors regarding their visit to the Central [Clinical] Hospital and Yu.V. Tymoshenko on 13 April 2012 (letter from the Ministry of Foreign Affairs of Ukraine dated 19.04.2012 no. 411/17-994-313), received and discussed information from members of medical staff of Kachanivska Penal Colony regarding the state of health of Yu.V. Tymoshenko, took into account objective evidence provided by the medical staff of Kachanivska Penal Colony regarding the lack of deterioration of the prisoner’s state of health; the board also took into account the fact that no additional complaints were received from the prisoner during their communication with her.
The board repeatedly advised hospitalisation [in order for] comprehensive treatment to be carried out. In response, the patient repeatedly stated that she wished to be treated in an inpatient facility. However, she did not specify the date on which such treatment should begin.
Based on all the available medical information, the board jointly arrived at the conclusion that, as of 20 April 2012, the prisoner can be transferred, both to the place of treatment and in other cases provided for by law.”
133. On the same day, the head of the medical unit of the Kachanivska Colony ordered the applicant’s hospitalisation in the Central Clinical Hospital of the State Railways. Again on 20 April 2012, at about 11 p.m., the applicant was transferred to this hospital. According to her, she objected to the transfer to that hospital as not suitable for her needs, and force was used against her. The applicant claims that, as a result, she was bruised and sustained haematomas on her stomach and a number of haematomas on her arms.
134. More specifically, the applicant’s account of the events of the evening of 20 April 2012 is as follows: at about 9 p.m. her cellmate was removed from the cell. Three prison guards came and, after the applicant refused to follow them, they forced her to leave the cell. They wrapped her in a sheet and hit her in the abdomen. Feeling acute pain in her abdomen and spine, the applicant lost consciousness and only woke up in the hospital. She remembered having been carried out to the ambulance by one of the prison guards. Despite the permanent surveillance of her cell, the prison administration claimed that no recording of the incident had been made.
135. According to the applicant, upon her admission to the hospital, she refused to be treated by the hospital staff and asked to contact her lawyer. Moreover, in response to being physically abused by the prison guards, she announced and began a hunger strike. Despite her request, the applicant’s lawyer was not allowed to visit her on 21 April 2012.
136. On 22 April 2012 at about 2 p.m. she was returned to the colony.
137. The applicant stated that on 23 April 2012 she had asked to be examined by the prison doctors who, however, had ignored her request. On the same date she had filed a complaint with the Kharkiv Regional Prosecutor’s Office about her forced transfer to the hospital and her alleged ill-treatment. She claimed that she had not been allowed to meet with her lawyer under the pretext that a “cleaning day” was taking place in the colony. The lawyer complained to the Kharkiv Regional Prosecutor’s Office.
138. Again on 23 April 2012 the applicant asked for a forensic examination to be carried out by an independent expert but, according to her, her request was dismissed by the Kharkiv Regional Prosecutor’s office.
139. On 24 April 2012 the applicant was allowed to see her lawyer for the first time since her return to the colony.
140. On the same date she showed her bruises to the colony medical staff. According to their examination report, minor bodily injuries (a bruise on the left forearm and two bruises on the right iliac area) were found on the applicant’s body as a result of a compressive blow by, or contact with, blunt solid objects one or two days prior to the applicant’s examination. The report also established that the apparent age of the bruises did not coincide with the time indicated by the applicant. Taking into account the locality and number of the applicant’s injuries, the report indicated that no less than one blow had been inflicted in the area of the left forearm, and no less than two, in the area of the abdominal cavity. The report pointed out that the localisation of these bodily injuries was such as for it to have been possible for the applicant to have inflicted them herself.
141. According to the Government, on 24 April 2012 a forensic medical expert was invited to examine the applicant. She, however, refused to allow the suggested examination.
142. Later on the same date the head of investigative department of the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings against colony staff in the absence of corpus delicti in their actions. According to the applicant, the prosecutor admitted, at a press conference, the application of force against her, but considered it to have been justified.
143. On the following day the above refusal was quashed due to the widespread dissemination in the media of information about the bodily injuries which had allegedly been inflicted on the applicant by colony staff. The prosecutor had also received the results of the applicant’s examination by the colony medical staff on 24 April 2012 confirming the existence of the bruises. Accordingly, additional investigation was deemed necessary.
144. On 25 April 2012 a representative of the Ombudsman’s Office visited the applicant, and on the same date the Ombudsman, Ms Nina Karpachova, made a public statement regarding the applicant’s state of health and the fact that she had been physically abused during her forced transfer to the hospital. She stated as follows:
“Yu. Tymoshenko gave her consent to an examination of her injuries by the Ombudsman’s representative in the presence of the governor of Kachanivska Colony. The examination established the presence of bruises on the upper part and near the elbow of the right arm, and a sizable bruise on the right lower part of the stomach.
Yu. Tymoshenko confirmed her statement of 23 April made to the Kharkiv Regional Prosecutor ... and expressed resentment over the absence of any reaction to that statement. She also stated that the Ombudsman had not been informed of her application and [that she had] asked for [the Ombudsman] to immediately visit the colony. In order to verify all the circumstances of the application of physical force to Yu. Tymoshenko, the Ombudsman’s representative met with the Kharkiv Regional Prosecutor ... and the Head of the Kharkiv Regional Department of the State Prisons Service of Ukraine.
The Ombudsman is obliged to state that, by the end of the working day on 24 April, the prosecution authorities had not duly responded to Yu. Tymoshenko’s application.
The Ombudsman declares that the transfer of Yu. Tymoshenko in such a manner amounts to ill-treatment of a detainee and could be classified as torture in breach of Article 3 of the European Convention of Human Rights ...
In this connection, the Ombudsman demands:
1. From the Prosecutor General of Ukraine – to open a criminal case and to suspend from their professional duties all those involved in Yu. Tymoshenko’s ill-treatment during her transfer from the colony.
2. From the Head of the State Prisons Service of Ukraine – to immediately ensure [the provision of] all necessary medical assistance [to Yu. Tymoshenko] in compliance with the decision of the European Court of Human Rights and the conclusions of the Ukrainian and independent foreign doctors.”
145. On the same date the applicant submitted a new request for an interim measure under Rule 39 of Rules of Court, asking that the Government be ordered to immediately use all available means at their disposal to ensure her treatment in the Charité Hospital in Germany.
146. On 26 April 2012 a further offer of a forensic medical examination was made but, according to the Government, the applicant refused to be examined. As a result, the head of Kharkiv Medical Academy’s department of forensic medicine, a doctor of medicine, was assigned to evaluate her injuries on the basis of the medical examination report of 24 April 2012. He confirmed that the report had been drawn up in accordance with the relevant requirements. He fully agreed with the doctors’ conclusions and noted that, due to the state of the haematomas on 24 April 2012 and their appearance one or two days before the applicant’s examination, the injuries could not have been inflicted on 20 April 2012. In addition, having familiarised himself with the medical file, which recorded the applicant’s state of health during her detention in Kyiv SIZO no. 13, he noted that recurrent “haematomas” under the skin had appeared from time to time on the applicant’s body since 16 August 2011, and had not been a result of external blows and could have resulted from a condition linked to the state of the applicant’s vascular and circular systems. The expert also expressed his opinion on the photographic materials published in the media, noting, in particular, that the photos on which the opinions expressed in the media were based could not be the subject of any standalone assessment, and that, in general, any opinions based on the photos would be ill-founded.
147. According to the applicant, the forensic expert wrote a report in which he summarized that her bodily injuries were “self-inflicted”. She refused to sign the report, as she felt it had wrongly presumed that her injuries could have been “self-inflicted”. She asked for a forensic examination to be carried out by an independent doctor, but her request was rejected by the Kharkiv Regional Prosecutor’s Office.
148. On 27 April 2012 the Ombudsman published pictures of the applicant’s bruises. On the next day, the Kyiv City Prosecutor Office allegedly searched the Ombudsman’s office and served writs on a number of her staff members who had been involved in reporting on the applicant’s physical injuries in the colony. According to the applicant, the Government declared that Ms Nina Karpachova had forced her staff to make a false statement about the bruises on the applicant’s body, without mentioning any names or sources for that statement.
149. On 3 May 2012 the investigator at the prosecutor’s office again refused to institute criminal proceedings against colony staff due to the absence of any indication of a crime in their actions. He noted in his decision, inter alia, the following:
“On 24.04.2012, upon referral by the Oblast prosecutor’s office, in a residential area of the colony, expert in forensic medicine SERBINENKO I.Yu. offered Tymoshenko Yu.V. to have a forensic medical examination. She flatly refused ...
On 26.04.2012, at 7.55, Tymoshenko Yu.V., again, flatly refused having a forensic medical examination with participation of SVENTITSKA S.G, head of the forensic medicine department at Kharkiv Oblast Forensic Medicine Centre ...
...
Copies of written requests by Tymoshenko Yu.V., dated 24.04.2012, in which she asks to carry out her examination aimed at registration of her injuries by the staff of the colony, with presence of the prosecutor and indicates her unwillingness to be examined by the expert in forensic medicine Serbinenko I.Yu., were added to the materials of the investigation. In the same documents, Tymoshenko Yu.V., with her own hand, indicated that staff of Kachanovska Correctional Colony no. 54 (doctor on duty Malyuga V.A., nurse on duty Rodina V.I., head of the medical unit Tsyura O.M., senior police operative at the operation branch Makarenko A.M.) examined her, and all her injures, as of 24.04.2012 were documented, and all the relevant data were entered into her medical records. ...”
150. According to the Government, in order to establish the circumstances of the applicant’s transfer to the hospital on 20 April 2012, her return to the colony on 22 April 2011 and her bodily injuries, the investigator had collected evidence from the head of the colony and fourteen other colony employees, two medical workers and two ambulance drivers who had been on duty, six members of the medical panel, two employees of the hospital and other individuals.
151. The head of the colony stated that on 20 April 2012 he had granted permission for the applicant’s transfer to the hospital. He had then given instructions to the deputy head of the colony (also head of the security department) and another deputy head of the colony to ensure the applicant’s transfer. He had been informed that the applicant had not objected to her transfer and had not complained of the infliction of any injuries. On 22 April 2012 the applicant had been visited by the colony medical staff on duty, who had observed no injuries on her body, while the applicant herself had made no statement about having suffered any injuries. The head of the colony had not given any instructions to his subordinates to use physical force on the applicant.
152. The deputy head of the colony stated that on 20 April 2012 he had been helping the applicant to come down the stairs to the ambulance and had accompanied her to the hospital. As she slowly descended the stairs from the second floor to the first, the applicant had told him that she was tired and had allowed him to carry her. He had carried the applicant to the ambulance, had placed her on a stretcher and had helped the driver to put the stretcher into the ambulance. He made it clear that no bodily injuries had been inflicted on the applicant in his presence. Similar statements were also given by the other deputy head of the colony and by a senior inspector.
153. The head of the colony medical department stated that on 20 April 2012 at about 7 p.m., he and two deputy heads of the colony had gone to the applicant’s cell and had informed her that she was to undergo an examination and to be hospitalised. He had asked her to gather together her personal belongings. At about 9.30 p.m. the applicant had been put into the ambulance. During her transfer to the hospital, she had not expressed any complaints that bodily injuries had been inflicted on her. The head of the colony medical department stated that the applicant had not lost consciousness. Once the ambulance had arrived at the hospital, the applicant had been advised to undergo an initial medical examination, but she had refused to do so. On 23 April 2012 at about 9.30 a.m. colony medical staff had gone to see the applicant, who had refused to undergo a medical examination. She had not made any complaints and the staff had not found any injuries on her body. At approximately 8.39 a.m. on 24 April 2012, in the course of their visit, changes had appeared on the applicant’s skin and she had allowed the medical officers to examine them. The head of the colony medical department noted, however, that she had categorically refused to allow a forensic examination of her injuries. Evidence to the same effect was also given by the colony’s doctor, by the colony’s duty doctor and by the nurse.
154. Guards from the colony’s surveillance and security department stated that on 20 April 2012 they had been on day duty in department no. 1 of the colony, where the applicant’s cell was situated. The department was equipped with video cameras working in real-time mode but without a recording function. While viewing the applicant’s cell on the monitor, one of the inspectors said that he had seen no use of physical violence on the applicant by the members of colony staff who had visited her; nor had he heard any noises. Once the staff members had left the cell, the inspector had seen on the screen that the applicant had taken a shower, had gathered her belongings together and had got into bed. In the course of the video surveillance, the guards had not noticed that the applicant had sustained any bodily injuries.
155. A cardiologist and paramedic working as part of the emergency team and the ambulance driver submitted that on 20 April 2012 they had arrived at the colony in the evening. They had seen a young man carrying the applicant in his arms from the doors of the exercise yard and placing her on the stretcher. They had not noticed any injuries on the applicant’s body.
156. The colony staff involved explained that at about 10 p.m. on 20 April 2012 they had entered the ambulance to take the applicant to the hospital and had later accompanied her to a ward on the ninth floor. The applicant had not made any complaints in their presence. According to them, no-one had inflicted any bodily injuries on her.
157. The doctor and ambulance driver stated that they had been on duty on 22 April 2012. After their arrival at the hospital at about noon the applicant had been carried out on a stretcher and placed on the gurney.
158. The Deputy Minister of Health stated that the applicant had been driven to the colony accompanied by police vehicles. She had not made any complaints to the persons involved and they had not noticed that she had any bodily injuries. She stated that on 20 April 2012 the medical panel had advised the applicant to start the treatment at the hospital. The applicant had not refused the treatment but had wanted to consult her lawyer. At about 10.40 p.m. she had been brought to the hospital, but the witness did not know the specific details of her transfer. She knew that from 20 to 22 April 2012 the applicant had been refusing to allow any kind of medical examination or treatment. During her visit to the applicant, the latter had not made any complaints and there had been no bodily injuries on any visible part of her body. Evidence to the same effect was given by other members of the medical panel.
159. The hospital doctors stated during their questioning that after the applicant’s arrival at the hospital at 10.40 p.m., she had immediately been hospitalised. During her admission there she had refused to allow any medical examination of her. On 21 April 2012 she had only complained of pain in her back and a headache; she had not made any other complaints.
160. The applicant’s cellmate stated that in the afternoon of 20 April 2012 colony staff had come into the cell and had notified the applicant that permission had been granted to hospitalise her. The applicant had refused to be transferred to the hospital, but the head of the colony medical department had asked her to be prepared to be transferred. The cellmate was asked by the applicant to prepare what was necessary in case it would be needed. The applicant’s cellmate went on to explain that at about 9.00 p.m. staff had taken her out of the cell and had accompanied her to the medical unit.
161. In the course of the inquiry, prisoners who were serving sentences in the colony and who had occupied cells next to the applicant’s cell were questioned. They stated that in the evening of 20 April 2012 they had not heard any cries or other noise.
162. On 4 May 2012 the applicant informed the Court that Ukrainian legislation did not provide for the possibility of outside doctors (either Ukrainians or foreigners) to take part in treatment in a particular hospital if they were not employed by it.
163. On the same date the Government informed the Court that they would grant an exemption to the aforesaid rule and allow the German doctors to join the Ukrainian medical team from the Central Clinical Hospital and be involved in the applicant’s medical treatment, which was to start on 8 May 2012.
164. On 9 May 2012 the applicant was transferred to the Central Clinical Hospital, where she started her medical treatment under the supervision of a German neurologist. On the same date she ended her twenty-day hunger strike.
165. In a letter of 12 May 2012 the applicant’s lawyer stated that the applicant had been under round-the-clock video surveillance, even while undergoing medical procedures. The prison authorities had also allegedly published a full report of the applicant’s medical history in the Ukrainian media and released video recordings which the lawyer claimed had been taken in her prison cell.
166. According to a report made by the German doctor regarding the treatment of the applicant between 7 and 17 May 2012, the termination of her hunger strike had been slow but successful and had allowed the commencement of some physiotherapeutic measures. However, the disclosure on the television of her diet and treatment on 15 May 2012 had triggered her strong indignation. As a result, the applicant had interrupted her treatment and had even contemplated completely refusing to follow it and returning to the prison. She had been convinced to continue the treatment under the condition that no doctors not directly involved in it would be present at the regular doctors’ consultations conducted in the hospital.
167. On 16 May 2012 the applicant filed a criminal complaint concerning her permanent surveillance in the hospital and publication of the confidential information concerning her state of health. On 1 June 2012 the prosecutor notified the applicant that there were no grounds to take any prosecution measure in this respect.
168. On 27 May 2012 the German doctor issued another report covering the applicant’s treatment between 21 and 27 May 2012. He noted the cooperative attitude of the Central Clinical Hospital doctors, who had been taking due note of his recommendations. As also noted in the report, the applicant had confidence in the competence and good faith of the hospital’s medical staff. The doctor further indicated the progress of the therapy and an increase in the applicant’s free time to three-and-a-half hours daily. At the same time, he pointed out that the applicant was under stress owing to the permanent video surveillance and presence of a security guard in her ward. He specified that the applicant had only been screened off from the video cameras using a curtain during his visits. This had often only taken place following his reminders. The guard had stayed in the ward during all medical procedures. Lastly, the doctor noted that the applicant had continued to refuse to allow any laboratory blood analysis to be conducted in Ukraine and therefore considered the possibility of that analysis being conducted in Germany.
169. On 31 May 2012 the interim measure applied on 15 March 2012 was lifted, following the Government’s request of 21 May 2012. On the same date, the applicant’s second request for an interim measure, made on 25 April 2012, was rejected.
170. On 1 June 2012 the German doctor issued another report on the applicant’s treatment, in which he summarised the impediments to its success as follows:
the applicant had accumulated, over the preceding eight months, profound mistrust towards Ukrainian doctors because they were civil servants, and was refusing to receive any treatment from them or to allow any blood samples to be taken for analysis;
it was impossible to have confidential doctor-patient conversations with the applicant – an essential part of the requisite therapy – because of the permanent video surveillance and the presence of a security guard and another inmate whose connection with the State authorities remained unclear;
there had been breaches of confidentiality relating to examination results, diagnoses and medical prescriptions (for example, the reports made by the German doctors had been disclosed on the Internet without the agreement of the applicant or the doctors);
the applicant was refusing to allow any medical measures requiring physical intimacy for fear of being discredited in the eyes of the public by the disclosure of the video records; and
interdisciplinary therapy was difficult to organise given the Charité Hospital’s inability to send a full team of doctors.
171. According to a letter sent by the Government dated 11 July 2012, the information which had been disclosed in the media had concerned the applicant’s diet and the scheduling of her medical procedures and had not been, contrary to her allegations, confidential. They also denied that it had contained any information concerning the applicant’s state of health and the nature of the medical procedures she had been undergoing.
172. On 8 June 2012 the applicant brought an administrative action before the Kyiv District Administrative Court, which she further complemented on 31 August, 21 September, 17 October and 24 October 2012. The applicant requested the court (i) to recognise as illegal the actions by officials of the State Penitentiary Service and of the Kachanivka Colony on the failure to fulfil her right to make telephone calls in accordance with Article 110 of the Criminal Code; (ii) to oblige the State Penitentiary Service and the Kachanivka Colony to meet the requirements of Article 110 of the Criminal Code by providing her a right to telephone calls including on the territory of the Central Clinical Hospital of the State Railway; (iii) to recognise as illegal the actions of the officials of the State Penitentiary Service and the Ministry of Health on the dissemination of confidential information regarding her and the state of her health; (iv) to prohibit the Ministry of Health and the State Penitentiary Service from disclosing confidential information regarding her and the state of her health in the future; (v) to recognise as illegal the actions of the officials of the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region of installing video cameras including hidden ones on the ninth floor of the Central Clinical Hospital of the State Railway and the video surveillance of the applicant; (vi) to recognise as illegal the actions of the officials of the Kachanivka Colony of filming the applicant in the Central Clinical Hospital of the State Railway; (vii) to bind by a commitment the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region at the entry into force of the decision to cease surveillance and remove surveillance equipment that is located on the ninth floor of the Central Clinical Hospital of the State Railway where she was accommodated; (viii) to recognise as illegal the actions of the officials of the Main Department of the Ministry of the Interior in the Kharkiv region in the implementation of public order, establishing barriers that impede the access of citizens to the ninth floor of the Central Clinical Hospital of the State Railway; and (ix) to recognise as illegal the actions of the officials of the Kachanivka Colony in providing male security officers at the Central Clinical Hospital of the State Railway.
173. In a judgment of 30 October 2012 the Kyiv District Administrative Court dismissed the applicant’s administrative application. In respect of the applicant’s complaint concerning the dissemination of the confidential information of her health condition the court stated as follows:
“The Ministry of Health of Ukraine denied the claim in this part on the grounds that the information about the plaintiff’s health condition is public, due to social publicity the information was given precisely in order to inform the public about important facts concerning the life and activities of a public person. The defendant states the press-release given on 16.02.2012 contains information about the activities of an established commission and the results of its work. The Ministry of Health further argues that the statement of the Minister is a comment on information which had been previously published in mass media.
...
The State Penitentiary Service of Ukraine denies the illegality of the disclosures of the above information, referring to the fact that this information was published to refute a statement released in the media and in the Internet. Specifically, the defendant states that information disseminated in the Internet on 25.11.2011, 01.12.2011, 08.12.2011, 13.02.2012, 17.02.2012, 27.02.2012, 09.03.2012, 23.03.12, reported the health status of the plaintiff, appeals of citizens, deputies and foreign diplomats to the defendant about the plaintiff’s health.
...
Having reviewed the materials submitted by the parties, the Court concludes that the information about the health condition and the fact of the plaintiff’s appeal for medical treatment was first disseminated by persons authorized by the plaintiff.
In particular, the case file contains a copy of the power of attorney dated 31.03.2011, registered under number 165 and issued by the plaintiff to Mr Sergii Volodymyrovych Vlasenko. By this power of attorney the plaintiff authorizes the mentioned person to provide judicial actions on her behalf.
Also, the case file contains a copy of the document signed on 17.02.2012 and addressed ‘To whom it may concern’, by the meaning of which Sergii Volodymyrovych Vlasenko and Eugenia Olexandrivna Tymoshenko were entitled to communicate with foreign and Ukrainian doctors, to make decisions on behalf of the plaintiff on full or partial withdrawal of the confidentiality of any data and results of medical examinations, including public disclosure and any other action with this information and data. This copy of the document contains the signature and decryption of the signature "Tymoshenko".
The mentioned copy of the document was added to the case file in the court hearing of 30.07.2012 by a motion of the plaintiff’s representative S.V. Vlasenko.
The case file confirmed that information regarding the plaintiff’s health condition was disseminated by the above persons who had been authorized to do so by the plaintiff, since November 2011.
Given that information was distributed by the plaintiff’s authorized representatives, with whom the plaintiff continues to work and not withdrawing the power of attorney dated 31.03.2011, registered with number 165 and without notification about the cancellation of the right to disseminate information, the court finds that the dissemination of information on Y. Tymoshenko’s health condition and the fact of request for medical help was agreed with her and did not violate the legitimate rights and interests, including rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
...
The Court ascertains that the dissemination of information by Yulia Tymoshenko’s authorized representatives about the health condition of the plaintiff draw a wide public response and heightened public interest in the country and abroad, as Mrs Yulia Volodymyrivna Tymoshenko is one of the prominent politicians and public figures of Ukraine during 1999-2011 years.
...
Accordingly, the aggregate of these facts gives a reason to believe that Mrs Yulia Volodymyrivna Tymoshenko is a public figure of the socio-political activities of Ukraine, whose life and activity causes heightened public interest of the public and media, both in Ukraine and in other countries.
The Court considers that the defendants had disseminated information about the refusals of the medical examination and conditions of detention in accordance with article 20 of the Law of Ukraine On Information, which establishes that the information with restricted access might be disseminated, if it is socially necessary, that is a subject of public interest and the right of the public to know this information prevails on the potential harm from its dissemination.
...
Instead, the defendants did not disseminate information on plaintiff’s diagnosis, the results of her examination or prescribed medical procedures, all disseminated information did not contain any names or other indications, which can identify the plaintiff’s disease.
Having considered the publications, which were added to the defendant’s objections, the panel of judges concluded that disseminated information by the defendants did not go beyond the previously directly defined boundaries by authorized representatives of the plaintiff and journalists who publicly provide adequate announcements and comments on various aspects of the health of Mrs Yulia Volodymyrivna Tymoshenko and the circumstances of her residence in the hospital. The Court considers that the information referred to by the plaintiff in proving her claims was given by the defendants in response to the initial comments of the plaintiff’s representatives in order to inform the public about the objective state of affairs, including responses to comments by Mrs Yulia Volodymyrivna Tymoshenko’s representatives.
Considering the injury of the plaintiff’s interests by dissemination of information about her, the Court concludes that the dissemination of information about health can not be considered as an invasion of privacy or a disclosure of information.
According to the court, the dissemination of information about the circumstances regarding the plaintiff, including measures that were not conducted on the plaintiff, including because of the refusal, does not violate the rights of the plaintiff.
174. In response to the applicant’s complaint on the unlawfulness of the video surveillance at the hospital, the court gave the following reasoning:
“According to Article 103 of the Penal Code of Ukraine, the administration of the colony may use audiovisual, electronic and other technical equipment to prevent escapes and other crimes, violations of established by law procedures of detention, to obtain necessary information about the behaviour of inmates. The administration of the colony shall inform prisoners about the use of equipment for surveillance and control. A list of surveillance and control equipment and the protocol of their application is determined by regulations of the central executive body of penitentiaries.
The panel of judges considers that this legal provision permits video surveillance of convicts, which is one of the measures in detention and control of convict’s behaviour. Such restrictions on the rights of the sentenced persons are directly stipulated by the Penal Code of Ukraine.
The plaintiff’s references in the court proceedings to surveillance by male security officers during the medical procedures and to surveillance with recorded camera images have not been proved. In this regard, the panel of judges has taken into account the expert opinion dated 22.10.2012, No. 26, according to which the file ‘Тимошенко в больнице.flw’, provided for research by the State Penitentiary Service of Ukraine, was not recorded on video-tape.
Given that the panel of judges reaches the conclusion that the actions of the defendants in video surveillance were legal.
With regard to the video surveillance provided by the Main Department of the Ministry of Internal Affairs of Ukraine in the Kharkiv region, the court assumes that, given the location of cameras which were set by the mentioned defendant, the plaintiff is not under video surveillance of the MIA of Ukraine in the Kharkiv region. Conducting video surveillance by this defendant with the purpose to protect public order does not violate the rights of the plaintiff and meets the requirements of the current legislation.
The panel of judges considers that surveillance over the movement of an unlimited number of persons, including the plaintiff, in the corridors of the hospital, is conducted legally and does not violate the rights of the plaintiff.
The Court concludes that the actions of the Main Department of Internal Affairs of Ukraine in the Kharkiv region on establishing barriers that impede the access of citizens to the ninth Floor of the STPI Ukrainian Railways Central Clinical Hospital does not violate the plaintiff’s rights, since the plaintiff is limited in movement because of the status of a sentenced person. Herewith, the restriction of the plaintiff to move freely in her hospital room, which is not disputed by the parties, denied the violation of the plaintiff’s limited access to the floor.”
175. Criminal Code 2001
“1. Abuse of power or office, namely the intentional use, for financial gain or with another personal interest or in the interest of third parties, by an official of his/her power or office against the interests of the service, if it has caused serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons, –
shall be punishable by ...
2. The same acts, if they caused grave consequences, –
shall be punishable by ...”
“1. Exceeding authority or official powers, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons –
shall be punishable by ...
2. Exceeding authority or official powers combined with violence or use of a weapon, or combined with humiliating acts or acts causing pain to the victim, provided that such acts do not fall within the scope of torture, –
shall be punishable by ...
3. Acts as described in paragraphs 1 or 2 of this Article, if they have caused grave consequences, –
shall be punished by imprisonment for seven to ten years with a prohibition of up to three years on occupying certain posts or carrying out certain activities.”
176. Code of Criminal Procedure 1961
“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, from obstructing the establishment of the truth in a criminal case or pursuing criminal activities, and in order to ensure the execution of procedural decisions.
Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. ...”
“At the pre-trial investigation stage a non-custodial preventive measure shall be selected by a body of inquiry, investigator [or] prosecutor.
If a body of inquiry [or] investigator considers that there are grounds for remand in custody [it or] he shall, with the prosecutor’s consent, submit an application to the court. A prosecutor is entitled to submit a similar request. When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for remand in custody, check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [against the suspect].
The application shall be considered within seventy-two hours of the arrest of the suspect or accused.
If the application concerns the remand in custody of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of the suspect or accused and his escort to the court. In such a case, the detention shall not exceed seventy-two hours, or, if the person concerned is outside the locality in which the court operates, [the detention] shall not exceed forty-eight hours from the time the arrested person was brought to the locality.
Upon receipt of an application, the judge who is assigned [to the case] in accordance with Article 16-2 of this Code shall study the materials of the criminal case file submitted by the body of inquiry, investigator [or] prosecutor, question the suspect or accused, and, if necessary, obtain explanations from the person dealing with the case, hear the prosecutor, [and] the defence lawyer if [the latter] has appeared before the court, and deliver an order:
(1) refusing the preventive measure, if there are no grounds for its application;
(2) ordering the remand in custody of the suspect or accused.
The court shall only decide on the remand in custody of a person in his absence if that person is on the international wanted list. In such cases, after the arrest of the person and no later than forty-eight hours from the time of his transfer to the place where the proceedings are pending, the court, with the participation of the person [concerned], shall consider [whether to] apply a preventive measure in the form of remand in custody or [whether to] change [such a measure] and shall issue an order accordingly.
If the court has refused to remand the suspect [or] accused in custody, it shall have the power to apply a non-custodial preventive measure to him or her.
The court’s order may be appealed against to the court of appeal by the prosecutor, suspect/accused, his defence or representative within three days of its delivery. The introduction of an appeal shall not suspend the execution of the court’s order.
If remand in custody requires reviewing additional information concerning the character of the arrested person or ascertaining other circumstances of importance in order for a decision to be taken on this issue, the judge may extend the period of detention for up to ten days, or, upon the request of the suspect/accused for up to fifteen days, and shall issue an order accordingly. Whenever it is necessary to decide this issue in respect of a person who has not been arrested, the judge may defer consideration of the matter for up to ten days and take measures to ensure his/her good behaviour during this time or may order the arrest of the suspect or accused for this period.”
“In the course of the consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this.
The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of Chapter 13 of the Code.”
177. Code on the Enforcement of Sentences 2003
“1. The administration of a colony has the right to use audio, visual, electronic and other technical means in order to prevent escape and other crimes by inmates, breaches of the prison rules, or in order to obtain necessary information about the behaviour of inmates.
2. The administration of a colony shall inform inmates about the use of technical means of surveillance and control.
3. The list of technical means of surveillance and control and the procedure for their use shall be established by regulations of the [Prisons Service of Ukraine]. ...”
“1. Physical force ... may be used against inmates with a view to putting an end to physical resistance, violence, rowdiness (буйство) and opposition to lawful orders of the colony administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them.
2. The use of force should be preceded by a warning if the circumstances so allow. ...
4. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary.
5. Any use of force must be immediately reported to the prison governor. ...”
“1. Prisoners have the right to ... receive medical assistance and treatment, including medical services paid for at their own or their relatives’ expense. ...”
“...
5. Prisoners may seek, at their own or at their relatives’ expense, medical assistance, including treatment, from civilian medical institutions. In such cases, medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his/her sentence, under the supervision of the colony’s medical staff.”
178. Health Care Act 1992
“Every citizen of Ukraine has a right to health care, which includes:
(a) living standards, including food, clothing, accommodation, medical services and care which are necessary for maintaining a person’s health;
(b) qualified medical and/or welfare assistance, [which] includes the free choice of a doctor [and] methods of treatment in accordance with a physician’s recommendations ...
(e) correct and timely information about his/her state of health and the state of health of the population, including potential risk factors and the scale of their severity;
(f) compensation for injuries to health;
(g) the possibility of an independent medical examination if a person disagrees with the conclusions of state medical experts, a prohibition on enforced treatment or any [other] activities which might violate a person’s rights and freedoms ...”
179. Pre-Trial Detention Act 1993
“Persons remanded in custody shall be provided with living conditions which comply with sanitary and hygiene requirements.
The standard size of a cell cannot be less than 2.5 square metres per person ...
Persons under arrest under the regulations of the Cabinet of Ministers are entitled to free food, a personal sleeping space, bedding, and other necessities. Where appropriate they shall be provided with clothing and shoes ....
Health care and rehabilitation services, ... are organized and provided in accordance with the Health Care Act.
The order of granting health services to persons under arrest, using hospitals, and examinations by physicians shall be determined by the [State Prisons Service] of the Ministry of Defence and the Ministry of Health.”
180. The Ukrainian Cabinet of Ministers’ Resolution no. 336 of 16 June 1992 “On Food and Nutrition Standards for Persons Detained in State Prisons Service Prisons and Pre-Trial Detention Centres or in Temporary Police Detention Facilities, Reception Centres and Other Temporary Remand Centres of the Ministry of the Interior” establishes detailed nutrition standards for detainees and prisoners, according to which the daily nutrition value should be 3,026.2 kCal.
181. Code of Administrative Justice of 6 July 2005 (in force from 1 September 2005):
“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons and the rights and interests of legal entities in the field of public-law relations from violations by public authorities ...
2. Any decisions, actions or inaction on the part of public authorities may be appealed against to the administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ...
3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken:
...
(6) reasonably;
...
(8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve;
...”
“1. Everyone has a right to apply to the administrative courts, in accordance with the procedure envisaged by this Code, if he or she considers that his/her rights or interests are breached by a decision of a public authority, or its actions or inactivity. ...”
“1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.
2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights. ...”
“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum.
2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular:
(1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity;
...”
Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on an initiative of the party to procedure. A measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that a failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. An interim measure can also be applied if it is evident that the contested decision is unlawful.
According to Article 162 of the Code, the administrative court, should it find an administrative claim substantiated, may (amongst other things) declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision.
182. The issue of compensation for unlawful detention in Ukraine is regulated by the Act “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiry, pre-trial investigation authorities, prosecutor’s offices and courts” of 1 December 1994 (“the State Compensation Act”). The relevant provisions of the State Compensation Act (as worded at the relevant time) can be found in the judgments in the cases of Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005) and Klishyn v. Ukraine (no. 30671/04, §§ 49-50, 23 February 2012).
183. Recommendation Rec(2006) 2 of the Committee of Ministers of the Council of Europe to member States on the European Prison Rules reads, insofar as relevant, as follows:
“...
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
...
10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
...
18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards;
...
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
...
19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interests of general hygiene.
...
21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.
22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.
22.3 Food shall be prepared and served hygienically.
22.4 There shall be three meals a day with reasonable intervals between them.
...
27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
...”
184. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (published on 23 November 2011) read as follows:
“5. Conditions of detention of the general prison population
a. pre-trial establishments (SIZOs)
i) the SIZO in Kyiv
100. The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously. Three smaller, more recent blocks provided accommodation for sentenced working prisoners, women and juveniles. A new block for women was in the process of construction, but that process had virtually been halted due to lack of resources.
With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates, including 217 women and 69 juveniles. The vast majority of the inmate population was on remand. The establishment was also holding 297 inmates awaiting the outcome of their appeal (including 41 life-sentenced prisoners), 93 prisoners in transit and 100 sentenced inmates assigned to work in the prison’s general services and maintenance. Further, there were 11 inmates who had been subject to forensic psychiatric assessment and who were awaiting a final decision concerning their criminal responsibility. The prisoner population comprised 210 foreign national prisoners (of whom 170 were from countries of the Commonwealth of Independent States).
Since 2001, following amendments to the CC, a section referred to as an “arrest house” had been set up for first-time offenders serving sentences of up to 6 months.
...
103. Material conditions prevailing in the section for women were somewhat better [than those in the section for men]. In particular, the cells were less overcrowded (e.g. 6 inmates in a cell measuring 8 m²; 16 prisoners in a cell measuring 27 m²). The cells had good access to natural light, but ventilation was inadequate and prisoners complained that in the summer the cells became very hot. The in-cell sanitary annexes were fully partitioned and had both cold and hot water taps. Some of the cells had been decorated by the inmates themselves and gave a homely impression.
...
104. The section for sentenced working prisoners provided the best conditions of detention in comparison with the other sections. The dormitories were adequately lit, well ventilated and clean. They were suitably furnished (beds, tables and chairs or stools, some shelves and lockers) and inmates could have their own radio or television. Further, the section comprised a sports hall, a spacious “club” where prisoners could watch films and play table tennis, and a chapel.
105. The prison did not provide inmates with personal hygiene products other than soap. As mentioned in paragraph 88, access to the shower was limited to once a week.
As regards food, prisoners were provided with three meals a day. The quantity of the food appeared to be sufficient, but many prisoners complained about its poor quality and lack of variety. In particular, there was no fresh fruit, eggs or milk (not even for juvenile prisoners). To supplement their diet, prisoners relied to a great extent on food parcels from their families and purchases from the prison shop.
...
The SIZO had a library with a collection of some 27,000 books. The delegation was surprised to learn that remand prisoners were not allowed to receive books (other than the Bible) or newspapers from outside. The CPT would like to receive the Ukrainian authorities’ comments concerning this prohibition.
The only regular out-of-cell activity was outdoor exercise of one hour per day, which took place in a series of exercise yards located on the top of the accommodation blocks. By virtue of their size and configuration, these high-walled, bare areas (measuring between 16 and 60 m²) did not allow prisoners to exercise themselves physically.
The CPT recommends that the Ukrainian authorities make strenuous efforts to offer organised out-of-cell activities (work, recreation/association, education, sport) to prisoners at the Kyiv SIZO. Further, the Committee recommends that steps be taken to construct more appropriate exercise yards which allow prisoners to exert themselves physically, as well as indoor and outdoor sports facilities.
...
6. Health care
a. introduction
123. In the course of the 2009 visit, the delegation was informed of a proposal to set up a working group to study the transfer of prisoners’ health care to the Ministry of Health. The CPT can only encourage this initiative, which is consistent with the remarks made in paragraph 142 of the report on its 1998 visit, namely that a greater involvement of the Ministry of Health in the provision of health-care services in prison will help to ensure optimal health care for prisoners, as well as implementation of the general principle of the equivalence of health care with that in the outside community. The Committee wishes to be informed of the action taken on the abovementioned proposal.
In this context, the CPT also wishes to stress the need for continued professional training for prison health-care staff, with a view to enabling them to perform their duties satisfactorily. The Committee would like to be informed of the national policy in this respect.
124. The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners. Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources. During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.”
185. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 29 November to 6 December 2011 [CPT/Inf (2012) 30] read as follows:
“... 48. On the occasion of this visit and in the light of reports recently received by the CPT, the delegation also examined in detail the health care being provided to certain persons who were being held at the Kyiv SIZO and, in particular, Mr Valeriy IVASHENKO, Mr Yuriy LUTSENKO and Ms Yulia TYMOSHENKO.
In this connection, the CPT would like to stress that the role of medical members of a visiting delegation is not that of a treating doctor; their task is to assess the quality of health care and, more specifically, the access to medical treatment of detained persons. The Committee also wishes to recall that the prison authorities are responsible for the health care of all prisoners; all efforts possible must be made to ensure that a precise diagnosis is promptly established and that adequate treatment required by the state of health of the person concerned is provided to all prisoners.
The CPT must express its concern that in respect of each of the three above-mentioned persons, considerable delays occurred – for various reasons – in arranging specialised medical examinations outside the SIZO. Problems of this kind have repeatedly been observed by the CPT during all previous visits to the Kyiv SIZO as well as to other penitentiary establishments in Ukraine. The Committee urges the Ukrainian authorities to take all the necessary measures to ensure that in future, all prisoners who are in need of specialist treatment/examinations are transferred to an outside hospital without undue delay.”
186. The relevant extracts from the Government’s response to the above CPT Report [CPT/Inf (2012) 31] read as follows:
“Regarding paragraph 48
In accordance with the abovementioned Joint Order of the Ministry of Justice of Ukraine and the Ministry of Healthcare of Ukraine of 10.02.2012 No. 239/5/104 all persons put under custody enjoy the possibility to receive specialized medical assistance in healthcare institutions of the Ministry of Healthcare of Ukraine without delays.
Regarding paragraph 49
In respect of the convict Ms. Julia Tymoshenko
During the time Ms. Julia Tymoshenko spent in Kachanivska penal colony (No. 54) until May 9, 2012, inclusively, 21 medical boards were set up comprising over 20 academicians, PhDs of medical sciences and Associates of Sciences; she refused to undergo medical examinations in 13 cases.
In addition, pursuant to the Joint Order of the SPS of Ukraine, the Ministry of Healthcare of Ukraine and the Ministry of External Affairs of Ukraine of 10.02.2012 No. 69/105/40 ‘On establishment of Medical Board Comprising Foreign Specialists for Medical Examination of Ms. Julia Tymoshenko and Support of Operation of this Board on the Territory of Ukraine’ the international medical board comprising foreign specialists was established, which performed medical examinations of convict Julia Tymoshenko on February 14 and 15, 2012, and gave relevant recommendations.
It must also be noted that medical workers of Kachanivska penal colony (No. 54) proposed on a daily basis convict Julia Tymoshenko to undergo medical examinations, which were turned down by her in most cases. Out of 284 proposed medical examinations, 247 were turned down.
All board medical examinations with respect to convict Julia Tymoshenko were performed exclusively based on her written consent. Medical examinations of convict Julia Tymoshenko performed by medical personnel of Kachanivska penal colony (No. 54) were compliant with legal regulatory acts regulating procedures for provision of medical assistance to detained and convict persons.
On April 20, 2012 the board of Ministry of Healthcare and SPS specialists proposed Ms. Julia Tymoshenko to continue her treatment in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution, in which, according to the opinion of German specialists, most favourable conditions were created for rehabilitation of Ms. Julia Tymoshenko.
Upon her arrival to the hospital on April [21], 2012 convict Julia Tymoshenko refused to undergo initial medical screening and examination and to start the course of rehabilitation measures.
On [sic] April, 2012 in view of implicit refusal of convict Julia Tymoshenko to sign informed consent for initial medical screening and medical intervention, she was signed out from the hospital and transferred back to Kachanivska penal colony (No. 54).
On May 4, 2012 after the course of rehabilitation measures was suggested to Ms. Julia Tymoshenko by German and Ukrainian doctors, she agreed in the oral form to undergo this course in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution under supervision of specialists from German Clinic ‘[S]harite’.
On May 9, 2012 Mrs. Julia Tymoshenko was hospitalized in the said healthcare institution with the purpose to undergo the course of rehabilitation measures under supervision of specialists from German Clinic ‘[S]harite’, where she stays until present. ...”
187. The relevant extract of the Country Report on Human Rights and Practices of the US Department of State released by the Bureau of Democracy, Human Rights and Labor in respect of Ukraine reads as follows:
“There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecutions by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulyia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials.”
188. On 9 June 2011 the European Parliament adopted a resolution on Ukraine: the cases of Yulia Tymoshenko and other members of the former Government. The resolution reads in so far as relevant as follows:
“The European Parliament,
... G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including ... the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, ...
I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights, ...
1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends;
2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied ...
3. Reminds the Ukrainian authorities that the principle of collective responsibility for the decisions of the government does not permit the prosecution of individual members of the government for decisions that were taken collegially; ... ”
VIOLATED_ARTICLES: 18
5
VIOLATED_PARAGRAPHS: 5-1
5-4
5-5
VIOLATED_BULLETPOINTS: 5-1-c
NON_VIOLATED_ARTICLES: 3