The following text is a transcripted version of the intervention of Aleksandr Pavlichenko, Executive director of the Ukrainian Helsinki Human Rights Union at the conference “Prisons of Russia, Ukraine, France, Germany : Questioning Prison Violence” held by the European Prison Litigation Network and the Dortmund University of Applied Sciences and Arts on 25 and 26 October 2019 at the Humbold University in Berlin.
I. Negligence to respect the rights of detainees to receive sufficient medical assistance as a cause to recognize a violation of Article 3 of the European Convention on Human Rights in Ukraine
Striving to draw public attention to the role of NGOs involved in the protection of detainees’ right to adequate medical help, as an example, we will refer to the activity of our organisation, the Ukrainian Helsinki Human Rights Union.
As we all know, the European Court of Human Rights recognised the lack of medical assistance or insufficient medical help as inhuman or degrading treatment. The reason for that is the pain that a person feels when there is no medical help, or it is insufficient.
The case law of the European Court of Human Rights on this topic has a rather ancient history in today’s terms. In 2005, the ECtHR delivered a judgement on the case “Nevmerzhitsky v. Ukraine”, concluding that Ukraine has violated the Art. 3 of the Convention, providing insufficient medical help to the inmate. Later, the Court delivered a series of judgements on insufficient medical help provided in detention facilities in Ukraine. The most notable judgements were delivered in cases such as Melnik v. Ukraine (2006), Logvinenko v. Ukraine (2011), Sergei Antonov v. Ukraine (2016), and Pivovarnik v. Ukraine (2016). In March 2019, the European Court of Human Rights delivered judgement on insufficient medical help provided in the case “Korol et al. v. Ukraine”, which combined applications from eight victims. In 2019, the ECtHR delivered 19 judgements on insufficient medical help in detention facilities in Ukraine. The number of judgements in this category of applications is impressive and clearly reflects the relevance of the issue.
What are the actual results of those judgements of the European Court of Human Rights? No doubt, within the last 15 years we see a positive trend in terms of access of inmates to the appropriate medical help. Nevertheless, in general, the medical help provided to people with infectious diseases is far from sufficient. Therefore, the European Court submitted a series of applications on insufficient medical help to the Committee of Ministers of the Council of Europe, considering this issue as a systemic one.
II. Monitoring and legal options accessible to NGOs in preventing violations of detainees’ rights in Ukraine. Convicts with HIV/AIDS. Special needs and rights violations linked to their status
What are the tools NGOs can use to exercise influence on authorities to improve the access to medical help? There are two ways, advocacy, and legal assistance. Generally, advocacy is done through monitoring visits and compiling reports on the results of such visits. Legal assistance is provided, as a rule, when the application seems to be strategic and has the potential to influence legal norms or case law, or can help change public opinion on the issue.
Public disclosure of the HIV status
To begin with, it is important to bring light to an issue which is less obvious. The public disclosure of the HIV-positive status of an inmate is a crucial issue for all categories of people with HIV.
The issue linked to public disclosure of the HIV status of people living in freedom is discussed quite often and therefore tends to find a solution in many cases. What happens inside detention facilities is a very different story.
Medical documents of people who live with HIV contain a code with numbers and letters indicating the HIV infection. All the medical staff has access to those documents. Health screenings are often conducted when other inmates are present. As compared to other issues, public disclosure of HIV status may seem like a minor issue. Therefore, the staff in detention facilities does not put too much effort into keeping this information private. Nevertheless, public disclosure of HIV status can result in discrimination against people who live with HIV by other detainees. Due to the particular character of the relations between inmates, this issue is not noticeable on the surface, but a lack of information on an issue does not mean the issue is nonexistent.
What can be done to solve it? Until now, we have not seen an inmate coming to us pointing out the public disclosure of their HIV status as an issue. Therefore, we are looking to solve the issue through advocacy. We talk to the medics in the penitentiary, explaining how important it is to take measures to preserve the confidentiality of inmates’ HIV status.
Failure to provide adequate medical care
Certainly, the key problem is the failure to provide medical assistance to detainees.
According to Prosecutor General’s Office, in 2016 in Ukraine’s detention facilities, there were 474 deaths, whereas in 2017 the number reached 529. Given the actual total number of inmates which is a bit below 60 thousand, the statistics look rather grim. The death rate is 88 fatalities for every 10 000 detainees, which shows a very low level of medical help. The major reasons for deaths are HIV and tuberculosis.
We consider it important to cite several very explicit examples here.
Person A has been living with HIV for many years already. The prescription was to implement antiretroviral therapy. At the start, a person’s health was considered reassuring. In July 2017, person A was placed in detention. Starting then and until now, the applicant is in detention. From the moment the person was placed in detention until January 2018, A was in Kyiv pre-trial detention facility. Upon placement in detention, A communicated the HIV-positive status to the administration of the pre-trial detention facility and asked for antiretroviral therapy. Nevertheless, due medical help was not provided to A. The health of person A gradually deteriorated, and symptoms typical of illnesses accompanying HIV emerged, such as high fever, general weakness, loss of weight and shingles.
The administration of the pre-trial detention facility refused to accept person A’s written complaints on health status, only allowing verbal communication. Only after two months after placement in detention, the administration of the pre-trial detention facility sent a request to the medical centre in the inmate’s residence area asking for medical data on the person. 4 months had to pass after the first complaints before the patient could receive the drugs within the antiretroviral therapy protocol. Moreover, after the treatment began, there was an interruption during antiretroviral therapy due to delays in bureaucratic procedures linked to the transfer from pre-trial to the colony. An application was filed with ECHR in relation to this incident.
Another incident involved person B who has been living with HIV since 2006. The person has a heart condition incumbent to HIV. The person was observed at Amosov National institute of cardiovascular surgery. Doctors established that heart surgery was necessary. In May 2018, person B was placed in detention, during which the immunology indicators deteriorated and accompanying diseases reemerged, making the heart surgery an emergency.
Therefore, the colony filed a request asking the court to exonerate person B in relation to the disease. The court of the first instance accepted the motion, but the prosecution filed an appeal, and the court of appeal denied the motion, reasoning that the legislation allowed to exonerate convicts that became ill after the verdict was delivered, but not the people who became ill before the court delivered the judgement. Meanwhile, lawyers filed several requests to the detention facility administration for the inmate to be placed in a specialized medical institution, the Institute of cardiovascular surgery. As detention facilities have no options to guard convicts in hospitals, the operation could not be done yet. An application has been filed to the ECtHR in relation to this incident.
We would like to cite another case of failure to provide appropriate medical help. Person C who lives with HIV was detained in several colonies. In April 2018, she started to have intense uterine bleedings, which led doctors to suspect cancer. Therefore, she was transferred to another colony that had an oncology centre attached. After screening, doctors verbally informed person C that there were two tumours formed in her uterus and that they were causing the bleeding. Nevertheless, this information was not added to her medical records. Also, the doctors refused to make an operation to remove the tumours, as the patient lives with HIV. As a result, the lawyers today have no document proving the tumours’ existence and are applying their efforts to obtain such proof, planning to lodge an application with ECHR afterwards.
Detention conditions and disciplinary sanctions as manifestation of inhuman treatment
Another important issue is undue detention conditions for sick inmates. Among issues that the prison hospitals are facing:
- undue condition of premises;
- insufficient quantities of drugs and diagnostic equipment;
- insufficient staff.
The main tool to identify such undue conditions in prison hospitals is monitoring visits. Most recently, our organization staff conducted such a monitoring visit to a hospital within a colony.
We have concluded that incarceration conditions are obviously not in compliance with European Prison Rules, the main issue being the hospital rooms are in very poor condition, with odours of humidity and moss on the walls. The hospital has not been well kept and lacks maintenance. Safety rules are breached, as the wall sockets are in the open. The daily schedule is barely followed, and control over the convicts staying in hospital rooms is very poor. All the patients’ rooms are in fact prison cells with metallic doors, which can be opened by an inspector only. There is only one inspector for the whole hospital with its three floors and many cells. Therefore, only one cell can be opened at a time. It is literally impossible under such circumstances to make sure that every inmate takes a one-hour walk, which was confirmed to us by the inmates themselves. There are people smoking in the patients’ rooms, as there is no other opportunity or space to smoke than the cells. There’s poor hygiene on all premises, food leftovers are getting rotten on the tables, and the sacs of cookies provided by charity organizations are stored on the floor. The inmates complained about the lack of hot water, preventing them from taking a bath for two weeks. As per the staff explanation, some temporary technical issues were behind the lack of hot water. Bedsheets used by the inmates were also not washed for two weeks.
Another issue is the overpopulation of patients’ rooms. In one of the cells, there were 10 beds, but 11 patients. One more issue from the list is the lack of medications and diagnostic equipment. Sick inmates complained about poor medication supply and lack of necessary diagnostic equipment, which is sometimes confirmed by medical staff.
The lack of medical doctors is a widespread problem at all detention facilities, which is due to the fact that they are being underpaid. It comes along with the acute lack of paramedics and nurses as well, forcing the patients to care for each other. Inmates with less dangerous illnesses look after the critically ill. The patients who are unable to walk need someone to empty their toilet or escort them to the bathroom and assist them with feeding. There were cases reported when detainees had to perform basic medical manipulations.
III. Applications supported by the Ukrainian Helsinki Human Rights Union: typology, success stories
In conclusion, we would like to share some of our organisation’s experience with regard to legal assistance to patients in detention facilities.
How can one help a sick person placed in detention?
Firstly, the relevant authorities can be coerced to ensure appropriate help is provided to sick inmates. Second, a sick inmate can be exonerated to be able to receive medical help upon release from detention. Normally, the most logical would be to provide appropriate medical help to the detainee. We did have cases when our organization’s lawyers coerced the authorities into the provision of appropriate medical help.
We would like to disclose one of such cases. Person D is living with HIV and suffers from cholelithiasis, chronic pilonidal disease and has had their spleen removed. In 2016, person D underwent a stenting operation on a kidney caused by a duct stone blocking the ureter. The duct stone had to be removed, but in 2017 person D was placed in detention. In July 2018, an emergency operation was needed to remove the stent from the body and remove duct stones from the kidneys, as there was blood and pus in the patient’s urine. Person D experienced severe pain. The operation was not implemented immediately, as the doctor operating the ultrasound machine was on vacation.
Lawyers lodged applications twice with ECHR for emergency measures to be put in place. In December 2018, ECHR compelled Ukraine to provide person D with necessary medical help, as well as transportation for the transfers. Eleven days later, the operation finally took place, but the patient endured heavy pain for five months. An application on violation of Article 3 of the European Convention on Human Rights has been submitted to the ECtHR in relation to this incident.
Such cases, unfortunately, remain exceptional. Most often, the decision taken is to exonerate the sick inmate. Why is it considered unfortunate? Because, following the current practice, the courts exonerate convicts when they already cannot walk and are released to go home to die. Even in such cases, convicts’ exoneration is still an important measure to take.
Let us use an example. Person E lives with HIV and suffers from illnesses subsequent to HIV, such as ulcers on the left shank, phlegmon of the left thigh, as well as chronic hepatitis. In July 2017, person E was convicted of a penal offence and sentenced to 3 years in detention. After the sentence was delivered, the punishment was deferred due to the illness, and person E was receiving treatment at home. In November 2017, the person was placed in detention regardless of the ongoing severe illness. The person has been detained in facilities in Mariupol, Zaporizhe and Selidovo. The person has extreme difficulty walking, and frequent transfers were causing strong pain. In May 2018, while in detention, person E underwent an operation in the surgical department of a hospital outside of the penitentiary system consisting to puncture the phlegmon of the thigh.
Starting in June 2018, the applicant was detained in Buchansk correctional colony № 85, 800 km away from home, spending the entirety of the time in the prison hospital. Nevertheless, the health of person E declined significantly. That is when our organization’s staff came to the prison hospital for a monitoring visit. The lawyers of the Ukrainian Helsinki Human Rights Union advised detention facility staff on the necessity to provide efficient treatment or exonerate person E.
Therefore, the administration of the facility filed a request to the court to exonerate person E due to illness, which was granted. What needs to be highlighted here is that the applicable legislation of Ukraine states the obligation of public authorities to ensure that inmates exonerated due to an illness are provided with complimentary transportation options to reach home or workplace within Ukrainian territory.
At the time of exoneration, person E was deprived of the possibility to move independently, due to the illness. Moreover, as phlegmons on the left and right thighs worsened, as well as the trophic ulcer, transportation, while seated, was extremely painful, so person E could only be transported in a horizontal position, reclining. An ambulance was necessary, this is why the lawyers of our organization filed a request with the penitentiary services for person E to be provided with transportation till home. These requests were ignored, and a charity organization took care of the patient’s transportation from the detention facility to the railway station by personal car. The members of the charity also purchased the patient’s train ticket to the person’s home city. Such travel caused severe pain, as the patient had to be placed on the rear seat of a sedan, which also caused suffering. Upon arrival at the train station, the patient had to be taken out of the car, and walked to the train where the person could recline and recline through the whole trip, but without anyone accompanying. Compassionate travellers could provide some assistance, though. At the destination, relatives came to the train station to assist with unloading the patient and carry the person home. This incident is also filed by the lawyers of our organization as an application on Convention’s Art. 3 violation by Ukraine.
We would also like to cite an example of how people lose their health in prison. Person F was healthy before being placed in detention and contracting tuberculosis in prison. The medical help provided was not appropriate, which, after a while, led the person to become half-dead. Only when the patient became critically ill, the court exonerated the person. Our organization’s lawyers are now collecting evidence of insufficient medical help to lodge an application with the European Court of Human Rights.
Our organization certainly has examples of the opposite, where we could not protect the rights of the inmates who were sick. Nevertheless, the examples reported to you are proof that NGOs do have tools to influence the actions of authorities, and those tools are efficient.