COUNCIL OF EUROPE COMMITTEE OF MINISTERS SECRETARIAT / SECRÉTARIAT COMITÉ DES MINISTRES SECRETARIAT OF THE COMMITTEE OF MINISTERS CONSEIL DE l'.EUROPE SECRÉTARIAT DU COMITÉ DES MINISTRES

Contact: John Darcy Tel: 03 88 41 31 56

Date: 31/01/2020 DH-DD(2020)94

Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1369th meeting (March 2020) (DH)

Communication from the Ukrainian Helsinki Human Rights Union and reply from the authorities (02/01/2020) in the KATS AND OTHERS group of cases v. (Application No. 29971/04)

Information made available under Rules 9.2 and 9.6 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

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Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1369e réunion (mars 2020) (DH)

Communication de « Ukrainian Helsinki Human Rights Union » et réponse des autorités (02/01/2020) relative au groupe d’affaires KATS ET AUTRES c. Ukraine (requête n° 29971/04) [anglais uniquement]

Informations mises à disposition en vertu des Règles 9.2 et 9.6 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables. DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. Ukrainian Association of public human rights organizations UKRAINIAN 3/34 Frolivska str., Kyiv, Ukraine, 04070 HELSINKI Phone/fax: +380 44 485 17 92, [email protected], www.helsinki.org.ua HUMAN RIGHTS For correspondence: 04071, Kyiv, PO box 100 UNION

19 December 2019 Council of Europe DGI - Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR F-67075 Strasbourg Cedex France

Ukrainian Helsinki Human Rights Union’s Submission to the Committee of Ministers of the Council of Europe as to the authorities’ failure to protect the right to life of the applicants remanded in pre-trial due to inadequate medical care (the execution of judgments on Kats and Others v. Ukraine group)

This briefing is submitted in accordance with Rule 9(2) of the Rules of the Committee of Ministers for the supervision of the execution of judgments.

Introduction 1.The Ukrainian Helsinki Human Rights Union (UHHRU) is the largest All- Ukrainian association of human rights organisations. Among the UHHRU efforts to protect human rights are ongoing monitoring of human rights situation in Ukraine and informing the public about facts of their violation, provision of legal assistance to victims of human rights violations, including supporting strategically important cases, protection of human rights and fundamental freedoms in courts, the authorities and bodies of local self-government, human rights research and analysis, including regular monitoring of draft laws and legal acts, as well as preparing and advocating own legislative initiatives, conducting awareness- raising campaigns, educational seminars, trainings on human rights.

Case summary 2. The cases of Kats and Others group concern the authorities’ failure to protect the right to life of the applicants/applicants’ relatives remanded in pre-trial detention (due to inadequate medical care in the cases of Kats and others, Salakhov and Islyamova, where victims were HIV-positive). Likewise, the same issues raised in the following cases of Karpylenko, Logvinenko, Lunev, Savinov, Kiyashko and Sergey Antonov v. Ukraine. 3. In addition, in the case of Kats and Others, the Court found a violation of Article 5 of the Convention of human rights and fundamental freedoms on account of the applicants’ relative’s unlawful detention. 4. The issue of inadequate medical assistance for people with HIV in Ukrainian detention facilities has already been addressed by the Court in a number of cases. On that matter the Court held the following position: DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

- In particular, in Kats and Others “despite the authorities’ knowledge that the applicant was HIV-positive, there was no relevant treatment at all, and this led to the person’s death”1. - In Salakhov and Islyamova “the applicant’s treatment for an HIV-related infection was sporadic and irregular”2. - In the case of Kiyashko “no adequate medical treatment had been provided to [the applicant], and that had resulted in the significant deterioration of his health”3.

Statistics and data 5. Ukraine is one of the first countries in the European region by the number of HIV-positive people. According to estimates, at the beginning of 2018, there were 244,000 oficially reported HIV-positive people in the country. Mostly the infected with HIV citizens of Ukraine are reported among the ages of 15 and 49. According to the European Center for Disease Control and Prevention and the European Regional Office of the World Health Organization, the region of Eastern Europe and Central Asia, which is territorially located in Ukraine, is the one where the number of new HIV infections and AIDS deaths continues to increase. The HIV disease in Ukraine at the present stage is characterized by the predominant involvement of persons in the age of employment with an increase in the proportion of the age group over 50 years among new cases. HIV infection is predominantly sexually transmitted, but still remains concentrated in HIV- infected populations. In the course of 2018, 50 cases of HIV infection were reported daily in Ukraine, 24 reported cases of AIDS and nine cases of deaths caused by AIDS. According to official statistics for the period 1987 - May 2019, 341 084 cases of HIV infection are officially registered in the country, including 114 487 cases of AIDS and 49 751 cases of deaths caused by AIDS. As of April 1, 2019, there were 142,076 HIV-positive citizens in health care facilities (an indicator of 336.5 per 100,000 population), including 46,987 patients diagnosed with AIDS (111.3). The highest rates of HIV infection were registered in Odesa (898.3 per 100,000 population), Dnipropetrovsk (792.6), Mykolaiv (743.5) oblasts, Kyiv (479.0), Kyiv region (447.9), Kherson (420.1) and Chernihiv (420.4) regions4. 6. The incidence of HIV infection in Ukraine increased until 2013, when the highest number of HIV-positive persons was registered in the country (21,631). A further significant reduction in the incidence of HIV infection in 2014 and 2015 is primarily due to the lack of statistics from the Crimea and part of the territory of the anti-terrorist operation. In the following years, the incidence of HIV infection

1 Sergey Antonov v. Ukraine, no. 40512/13, § 81, 22 October 2015; 2 Sergey Antonov v. Ukraine, no. 40512/13, § 81, 22 October 2015; 3 Kiyashko v. Ukraine, no. 37240/07, § 93, 23 February 2017; 4 HIV/AIDS Statistics of "Public Health Center by the Ministry of Health of Ukraine", available at: https://www.phc.org.ua/kontrol-zakhvoryuvan/vilsnid/statistika-z-vilsnidu;

2 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

in the country increased (from 15,869 cases in 2015 to 18,194 in 2017), the incidence rate in 2017 was 42.8 per 100,000 population, which is 7% more than in 2016. 7. According to the UNAIDS 2016-2021 Strategy “to end the AIDS epidemic as a public health threat by 2030”5, action is needed to end the HIV infectioning. It is a call to reach the 90–90–90 treatment targets, to close the testing gap and to protect the health of the 22 million people living with HIV who are still not accessing treatment. The 90–90–90 targets envision that, by 2020, 90% of people living with HIV will know their HIV status, 90% of people who know their HIV- positive status will be accessing treatment and 90% of people on treatment will have suppressed viral loads. Thus, in Ukraine by 2020 an additional 97,000 HIV-people should be covered by treatment, and 87,000 of them should have undetectable levels of the virus in their blood. 8. In 2018 in Ukraine6:  47% of people living with HIV knew their status.  35% of people living with HIV were on treatment.  32% of people living with HIV were virally suppressed. 9. are among the most vulnerable to socially dangerous infectious diseases. The incidence of HIV among prisoners is 20 times higher than among the civilian population, and the incidence of AIDS among convicts is 4 times more frequent. 10. There is also a high prevalence of HIV co-infections in Ukrainian . Incarceration contributes to tuberculosis (TB) transmission and although Ukraine’s population consists of 0,5% of the adult population, 6,2% of all new TB cases across the country are a direct result of incarceration. 11. This association is even more stark for people who inject drugs that are also HIV positive, with incarceration linked to 75% of TB infections for this population7. Hepatitis C prevalence in prisons is also substantially high estimated at 60.2%8. 12. By the officials’ data9, currently, more than 57,000 people are in detention centers and prisons in Ukraine. Among them, about 6.7% have HIV/AIDS, 2.3% have tuberculosis. 13. For this reason, the measures to counteract HIV infection and tuberculosis disease in detention facilities are under the particular control of the Public Health

5 https://www.unaids.org/en/goals/unaidsstrategy; 6 https://www.unaids.org/en/regionscountries/countries/ukraine; 7 Altice, FL. et al, (2016) ‘The perfect storm: incarceration and the high-risk environment perpetuating transmission of HIV, hepatitis C virus, and tuberculosis in Eastern Europe and Central Asia’ The Lancet, Sep 17; 388(10050): 1228–1248; 8 ibid; 9 HIV/AIDS Statistics of "Public Health Center by the Ministry of Health of Ukraine", available at: https://www.phc.org.ua/kontrol-zakhvoryuvan/vilsnid/statistika-z-vilsnidu;

3 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

Center10 of the Ministry of Health of Ukraine, the Ministry of Justice11 and the State Criminal Enforcement Service of Ukraine12. 14. Antiretroviral therapy (ART) is an integral part of the comprehensive care program for people living with HIV, along with the prevention and treatment of opportunistic infections, palliative care. The goal of ART is to maximize the suppression of HIV reproduction in the body, to restore the function of the immune system, to continue and improve the quality of life of HIV-positive people. The clinical protocol of ART of adults and adolescents takes into account World Health Organization (WHO)13 recommendations, specific features of the health care system, the range of antiretroviral medicines registered in Ukraine, the possibility of monitoring therapy. 15. ART in Ukraine is provided in accordance with the Clinical Protocol of Antiretroviral Therapy of HIV in Adults and Adolescents, approved by the Order No. 551 of 12.07.2010 of Ministry of Health of Ukraine14. As of 01.01.2019, 80 026 patients were receiving ART in Ukraine (data do not include Crimea, Sevastopol, occupied territories of Donetsk and Lugansk regions).

Previous examinations on this matter 16. Last examination of the Kats and Others case took place on 1230 meeting (on 9- 11 June 2015), when the Communication from Ukrainian Helsinki Human Rights Union was analysed. 17. On the other hand, the same long-term substantive problems, that caused the violations of the Convention in Kats and Others case, still exist nowadays. 18. The same issues raised in this cases are examined in other group of cases, where the action plans were presented. 19. The total number of cases under this group is 8. Although the execution of the Kats and Others case was not examined since 2015 and a comprehensive action plan setting out all the measures adopted and/or envisaged is still awaited, in particular, information is required as regards the legislative framework governing the treatment and release of persons from pre- trial detention for medical reasons, an awareness-raising campaign among the relevant authorities is also possibly needed. 20. For instance, the Committee of Ministers of the Council of Europe has already analised the obstacles in the field of medical care of detainees on December 201815. 21. As to the general measures the authorities provided updated information on the ongoing reform of the penitentiary system and domestic remedies for ill- treatment on account of medical care specifically.

10 https://www.phc.org.ua/; 11 https://minjust.gov.ua/; 12 https://www.kvs.gov.ua/peniten/control/main/uk/index; 13 https://www.who.int/; 14 https://zakon.rada.gov.ua/rada/show/v0551282-10; 15 https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016808f00a0;

4 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

22. As to the Action Plan on measures to be taken for implementation of the European Court of Human Rights judgments (hereinafter – ECHR) in the cases v. Ukraine of Nevmerzhitsky group, Yakovenko group, Logvinenko group, Isayev group and Melnik group, the problems revealed by the present cases, notably the inhuman and/or degrading treatment suffered by the applicants because of, in particular, insufficient medical care in detention, haven`t been solved yet. 23. Underlining that, the Committee of Ministers indicated “the structural nature of the problems arising from the judgments of these groups”.

Healthcare in detention facilities of Ukraine nowadays 24. These are normative legal acts that currently regulate the provision of medical assistance in penitentiary institutions, as to the HIV treatment: - The Decree of the President of Ukraine No. 501/2015, which established the National Strategy on Human Rights16. - The clinical protocol of antiretroviral therapy for HIV infection of adults and adolescents17; - The law of Ukraine “On combating the spread of human immunodeficiency virus (HIV) diseases and the legal and social protection of people living with HIV”18; - The law of Ukraine “On the prevention of acquired immunodeficiency syndrome (AIDS) and social protection of the population”; - The law of Ukraine “On ensuring the sanitary and epidemic well-being of the population”; - Fundamentals of Ukrainian legislation on health care; - The law of Ukraine “On ratification of the Loan Agreement (Tuberculosis and HIV/AIDS Control Project in Ukraine) between Ukraine and the International Bank for Reconstruction and Development”; - The law of Ukraine “On amnesty”; - Decision of the Cabinet of Ministers of Ukraine “On adoption of the strategy for ensuring a sustainable response to tuberculosis epidemics, including chemoresistant, and HIV/AIDS for the period up to 2020 and approval of the action plan for its implementation”19; - The law of Ukraine “On protection of the population from infectious diseases”; - Decree of the President of Ukraine “On improving public administration in the field of HIV/AIDS and tuberculosis in Ukraine”; - Decree of the President of Ukraine “On additional urgent measures to combat HIV/AIDS in Ukraine”; - Resolution of the Verkhovna Rada (Parliament) of Ukraine “On Bills on Amendments to the Law of Ukraine “On Prevention of Acquired

16 https://zakon.rada.gov.ua/laws/show/501/2015; 17 https://zakon.rada.gov.ua/rada/show/v0551282-10; 18 https://zakon.rada.gov.ua/rada/show/1972-12; 19 https://zakon.rada.gov.ua/laws/show/248-2017-%D1%80;

5 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

Immunodeficiency Syndrome (AIDS) and Social Protection of the Population”; - Resolution of the Verkhovna Rada (Parliament) of Ukraine “On Parliamentary Hearing Recommendations on “Ways to Reform Health Care and Health Insurance in Ukraine”; - Decision of the Cabinet of Ministers of Ukraine “On some Issues of Tuberculosis and HIV/AIDS”; - Decision of the Cabinet of Ministers of Ukraine “On issues of prevention and protection of the population against HIV and AIDS”; - Decision of the Cabinet of Ministers of Ukraine “On the establishment of the Ukrainian Fund for Combating HIV and AIDS”; - Decision of the Cabinet of Ministers of Ukraine “On the order of participation of central executive bodies in the activities of international organizations of which Ukraine is a member”. 25. Reffering to the Consolidated updated Action Plan on measures to be taken for implementation of the European Court’s judgments in the cases of Nevmerzhitsky group v. Ukraine (Application no. 54825/00, judgment of 05/04/2005, final on 12/10/2005); Yakovenko group (Application No. 15825/06); Logvinenko group (Application No. 13448/07); Isayev group (Application No. 28827/02); Melnik group (Application No. 72286/01), some of its purposes are focused on presenting the measures envisaged to address the violations, caused by the lack of adequate or timely medical care in detention. 26. As to the general measures, the Government recognize and agree that the problems related to the custodial conditions and the lack of proper medical treatment in all types of detention facilities are structural and require comprehensive measures. 27. Despite the Health Care Centre of the State Penitentiary Service of Ukraine (hereinafter – Health Care Centre) was formed in 2018, the so-called penitentiary reform is still in progress, so the appropriate conditions yet not pursued. The rapid shift of competence among State agencies caused a number of challenges for their approved officials. Before the Health Care Center was formed, the medical staff of each medical unit has been supervised by the detention institution whereby it had been set. The establishment of the Health Care Centre was aimed to ensure medics` independence from the influence of the State Penitentiary Service`s governance. With the next step the Government was intended to settle certain terms where the functions of providing medical assistance in custody could be transferred from the Ministry of Justice to the Ministry of Health20. There was no transitional provision envisaged, so the interim state of health care in custody seems uncertain yet. 28. The existing laws and decrees (p. 24) do not form any terms to make the above- mentioned transition of competence become transparent and clear.

20 The Concept of reforming (development) of the penitentiary system of Ukraine, available in Ukrainian: https://zakon.rada.gov.ua/laws/main/654-2017-%D1%80

6 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

That resulted in absence of licenses for the medical units, inability to provide surgery within it, unavailability to control the ensurance of meds and lack of personnel, because the conditions of employment significantly lost its attractiveness without entitlements and preferences. 29. In accordance with the National Srategy on Human Rights, the Government has expected the creation of an equal access to high-quality medical care for people living with HIV and other socially dangerous diseases. According to the national report on the current state of execution the ECHR judgments (p. 25) the penitentiary reform foresees the medical support as, inter alia: - regulation of the right to health care according to the international standards; - introduction of a patient friendly health care system; - establishment of a independent medical vertical integrated into the national health care system; - improvement of material technical resources and creation of proper conditions for effective functioning of the medical treatment system; - introduction of the system of preventive medicine and combating socially dangerous diseases. With such generalized description of the purposes none of the penitentiary reform results could not be measured or evaluated in progress. 30. Since the Health Care Centre of the State Penitentiary Service of Ukraine was established and Regulations on the Health Care Centre were approved, the medical care for detainees did not meet any of afore-mentioned standarts. 31. As to the speediness of HIV diagnosing, in the beginning of 2019 one single item of laboratory equipment started to operate on the basis of Dnepropetrovsk multidisciplinary hospital no. 421. It determines whether a person is suffering from hepatitis, HIV/AIDS and tuberculosis within one hour, but it`s unique in the whole system of health care institutions in Ukraine. Also it has been funded as part of the “Serving Life” project by USAID22. Qualitative diagnostics at the early stage is highly required for the security of the detainees themselves and the employees of corresponding facilities, as far as the appointment an appropriate course of treatment. Health care in institutions are currently represented by: - medical units in 108 penitentiary institutions; - paramedical stations in 4 penitentiary institutions;

21 Post of the Deputy Minister of Helth of Ukraine available at: https://www.facebook.com/DenysChernyshov.official/photos/a.231078807301732/546566975752912/ ?type=3&theater; 22 Serving Life, PATH (September 27, 2017 - September 26, 2022) available at: https://www.usaid.gov/ukraine/global-health SL will reduce HIV, tuberculosis, and HCV transmission through detection, care, and treatment of people living with HIV, TB, and HCV in pre-trial detention centers, prisons, and post-prison settings in Ukraine. PATH will implement the activity in 12 oblasts with the highest HIV, TB, and HIV/TB co- infection rates: Dnipro, Donetsk, Mykolaiv, Odesa, Kyiv, Kherson, Zaporizhya, Kirovograd, Cherkasy, Chernihiv, and Poltava;

7 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

- 10 multi-field hospitals, including 1 mental hospital; - 8 tuberculosis hospitals. 32. The Order of the Ministry of Health of Ukraine which approved the ”Procedure for providing HIV prevention services among representatives of high- risk groups for HIV”23 from 12th July 2019 doesn`t include any mentions of prisoners. 33.The strategy for ensuring a sustainable response to tuberculosis epidemics and HIV/AIDS for the period up to 2020 (p. 24) apart from procurement of ART does not provide any additional sources of funding or refer to charitable foundations, international technical and financial assistance. Meanwhile, about 70% of the available medical equipment is outdated (from 60s - 80s), morally and technically worn or inoperative. As the Deputy Minister of Justice of Ukraine, the curator of the State Criminal Enforcement Service of Ukraine in 2018 stressed that “funds from the state budget for the renovation of medical equipment durind 6 previous years were not allocated at all”24.

Current state of the matter and new cases of violations

34. The authorities have indicated that regarding the medicine and medical equipment: - In 2016, the budget proposal for the provision of medical facilities amounted to UAH 144.7 million, while UAH 50.3 million was allocated, which was only 34.8%. Charity support for the purchase of medicines amounted to UAH 36.9 million which provided funding for the provision of medicines in the amount of 25.5%. The offer to the state budget to provide medical equipment amounted to UAH 157.2 million, but funding was not provided. - In 2017, requests for the financing of medicines amounted to UAH 178.3 million, however, only 52.8 were allocated, which was only 26.6%. The proposal for medical equipment amounted to UAH 164.1 million, however, funding from the state budget was not allocated. The charity support for the purchase of medicines was UAH 24.8 million which provided funding for the provision of drugs in the amount of 13.9%. - In 2018, the budget proposal for the provision of medical facilities amounted to UAH 192.5 million while UAH 52.6 million was allocated, which was 27.3%. Purchases for medical equipment required funding of UAH 419 million, but no funds were allocated. Charity support for the purchase of medicines was UAH 28.6 million which provided financing for the provision of drugs in the amount of 14.8%.

35. As regards the access to medical care, in the healthcare institutions of the State Penitentiary Service of Ukraine (hereinafter – SPSU) the process of transfer of medical equipment, which is on the balance of penitentiary institutions and pre- trial detention facilities to the Health Care Centre continues.

23 https://zakon.rada.gov.ua/laws/show/z0855-19; 24 http://resonance.ua/penitenciarna-reforma-nastupna-glav/;

8 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

36. The authorities have indicated that the setting-up of the Health Care Centre is ongoing, as well as the transfer of health care tasks from the Ministry of Justice to the Ministry of Health, i.e. medical staff will no longer have military status or be under the authority of prison governors, being supervised instead by a separate entity within the Penitentiary Department. 37. The Committee of Ministers responded then as follows: - Given, in particular, the time that has elapsed since the first judgments of the Court in these groups of cases, and the structural nature of the problems revealed, it is now of paramount importance that the authorities take concrete action to follow up on their strategic planning and continue to work on the adoption of a comprehensive long-term strategy capable of leading to the resolution of these problems, with clear and binding timelines for taking the relevant measures, and allocate the necessary human and financial resources. It is equally important that, in the transitional period until the full implementation of the strategy, the authorities take concrete action to reduce overcrowding and to improve material conditions of detention for both categories of detainee and their access to medical care. - Concrete action, without delay, is therefore still needed to ensure compliance by Ukraine with its obligations arising from the European Court’s judgments. There must be tangible progress in the adoption of the necessary measures to implement effective remedies in respect of the shortcomings identified by the Court. Moreover, given the structural nature of the violations found by the European Court in these cases, in order to be effective in practice, there must also be overall improvement in detention conditions and access to medical care. 38. Despite the fact that the State is responding to obvious problems with the medical provision of HIV-positive prisoners, the measures taken today are not enough. Systemic violations are still present in this area and cannot be resolved without quality intervention from the authorities. 39. According to corresponding data provided above the lack of proper diagnostic examinations and treatment, including ART, as well as the lack of attention to concomitant diseases provoked by HIV in the event of a shortage of staff or inappropriate untimely help, leads to new events of infections, a significant deterioration of the condition of the convicts themselves, and even deaths in prison. 40. The Ukrainian Helsinki Human Rights Union (hereinafter – UHHRU) records new cases of violations on disputed matter and provides monitoring of human rights compliance in prisons. 41. Within a year of 2018-2019 the UHHRU analyzed a bunch of same-related issues. Six of them vividly represent the essence and depth of structural challenges for the Government. 42. On 10th April 2018 UHHRU took a case of non-provision of medical aid in Chernomorska Correctional Colony No. 74 (Odesa).

9 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

The applicant is HIV-positive women, who had permanent uterine bleedings and neoplasms in the uterus as a co-disease, caused by non-sufficient treatment of HIV. 43. On 4th May 2018 the UHHRU initiated the application to European Court on human rights (ECHR) on the matter of non-provision of antiretroviral therapy to the applicant in Buchanska Correctional Colony No. 85 (Kyiv region) for 5 months in a row. The decision is pending. 44. In July 2018 the mother of convicted applicant reported of another case of violation in Buchanska Correctional Colony No. 85. The convict accepts ART, has a severe health condition, as he has other diseases. Because of the absence of specialist - an ultrasound doctor - as the latter was on vacation, the urgently needed surgery was not performed. 45. On July 2018 another case was reported. The applicant was serving a sentence in Khmelnytsky SIZO (detention facility). Due to non-provision of medical aid, poor performance of medical-advisory commission, the state of applicant`s health has significantly decreased. That caused his impossibility to complete the sentence. 46. In the course of the monitoring visit of the UHHRU representatives to Buchanska Correctional Colony No. 85 in August 2018 an HIV-positive person has applied with complain. Since the the HIV was confirmed, some severe concomitant diseases has appeared. The applicant's health deteriorated significantly during his sentence, which requires his release because of illness. 47. At the beginning of 2019 whithin the monitoring visit to the Buchanska Correctional Colony No. 85 of the UHHRU the applicant addressed to the monitors with the complaints on health deterioration. The applicant is an HIV- positive person and suffers from hepatitis C. Despite the fact that the applicant was receiving ART, the poor conditions of the colony significantly damaged his health state. The above-mentioned circumstance threatened the life of the applicant. Therefore, the applicant considered as the one that should be released from serving a sentense due to illness, with further referral to the hospital. The colony was inactive on the applicant`s release proceedings, even while it faced the factual need of his release. In addition, the applicant had difficults on the matter of applying for free legal aid. Notwithstanding the fact that the court upheld the petition and released the applicant from serving his sentence, the prosecutor's office appealed by disagreeing with the court's decision. 48. During the above-mentioned monitoring visit in p. 47, the UHHRU received one more application of an HIV-positive person, who suffered from heart disease and needed surgery. With the operational delay he might die. The applicant`s health deteriorated significantly, simultaneously the very surgery within the conditions of facility was impossible. Therefore, the applicant was considered as one who should be released and sent for the treatment to the hospital. The court released the applicant from serving his sentence on account of his illness. The prosecutor disagreed with the above-mentioned decision and filed an appeal. The main argument of the appeal was expressed in the opinion that the

10 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

applicant was able to receive the necessary treatment outside the colony while continuing his sentence. 49. Inadequate reasons for refusal of individual`s release from serving a sentence in case of p. 48 can be expressed as following. The current legislation of Ukraine contains the single rule, which provides the possibility of exemption from punishment related to - Part 2 of Art. 84 of the Criminal Code of Ukraine: “A person who, after committing a crime or passing a sentence, has contracted another serious illness that prevents the sentence from being served, may be released from punishment or from his further serving. In resolving this issue, the court takes into account the gravity of the crime committed, the nature of the disease, the identity of the convicted person and other circumstances of the case.” So the current legislation allows to release a convicted person from serving a sentence explicitly when this person becomes ill after the fact of committing a crime or sentencing. Thus, the current legislation does not even provide the possibility of exemption from punishment of persons who are already ill at the moment of committing a crime or serving a sentence, even if in the process of serving the sentence the disease progresses and the person is in a critical condition. 50. With the medical examinations patients should to be offered to test for HIV/AIDS, which is possible only with the consent of the person. There is no factual ensurance that the detainees are aware of their rights, i.e. the right to be examined with the HIV-infection and have the relevant medical assistance then. 51. Problems in the sphere of medical care of prisoners were fixed by the monitors of NGO “Ukraine without torture”25. In particular, the timely detection of tuberculosis patients is not organized: the convicts with changes in the lungs, according to the results of radiological examination, do not collect and analyze sputum, they are not isolated from other persons. Patients with suspected tuberculosis are referred for hospitalization in secondary level hospitals. In communicating with the prisoners, it was found that they were not sufficiently aware of their health, the results of the examinations and the subsequent staging as necessary. 52. Due to the lack of proper attention to the health of prisoners, illnesses and ailments progress rapidly, reducing the effectiveness of any further treatment when the HIV detected. The case of death was recorded in the Kyiv SIZO26. Dmitry Ponomarenko was HIV-positive, but did not receive specific treatment. For the first time, the treatment of HIV infection (ART) was appointed by the SIZO medical staff a little less than a year after the detention. It has been revealed that he has the latest stage of the disease - AIDS. On 7th August 2017 he died.

25 https://notorture.org.ua/2019/06/04/nesvoiechasne-vijavlennja-hvorih-na-tuberkuloz-i-vidsutnist- medichnih-knizhok-monitoringovij-vizit-do-petrivskoi-vipravnoi-kolonii/; 26 https://www.slidstvo.info/texts/yak-vazhkohvori-v-yazni-pomyrayut-v-ochikuvanni-medychnoyi- dopomogy/;

11 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

This case was brought to the Eropean Court of Human Rights27 and as of today it is communicated. Dmitriy Ponomarenko was held in pre-trial detention since 7 April 2016. According to the medical documents, he suffered from AIDS (IV clinical stage), tuberculosis, cryptococcal meningitis etiology. On 21 July 2017 the ECHR applied Rule 39, indicating to the Government that they should secure access for Dmitriy to a specialised medical treatment. His mother, the second applicant in the case, maintained the application of her son and submitted further complaints: Dmitriy had not been provided with adequate medical treatment; he had not received relevant care and assistance in detention given his serious physical disability; he had been handcuffed and tied to bed during the periods when he underwent medical treatment in hospitals. His mother complained that the lack of medical treatment and special care during the long period of Dmitriy`s pre-trial detention brought to the death of the latter. 53. Even pre-diagnosed HIV-positive individuals don`t get a proper treatment, because of non-professional medical care in a jail. One of the recent decisions of the ECHR concerned the convicted Anna Solopova28. The applicant was born HIV-positive. In prison of Dnipro, she no longer took the medication. Meanwhile, without treatment, HIV went into AIDS. The final diagnosis was made by Anna a year ago, but all this time she was treated improperly29. 54. In 2018, most complaints received by the Ombudsman concerned violations of the rights to health care and medical assistance during detention. According to EHCR`s case-law, non-medical treatment equals torture. However, within 5 previous years in Ukraine, single indictment against a prison employee has been brought to court under Article 127 of the Criminal Code - as an act of “torture”30. 55. There are no doctors in prisons, and some facilities have only junior medical staff. Therefore, not in every prison the prompt and qualified health care can be provided. For the treatment in civilian or specialized hospitals, the prisoners have to wait for the transportation by special transport, which is irregular and totally depends on the administration of the facility. 56. Also the level of staffing with qualified healthcare specialists impacts quality and timeliness on the medical services provision by the healthcare institution. Thus, the staff schedule of the hospital in Buchanska Correctional Colony No. 8531 includes 58 positions of the healthcare specialists. 14 positions are vacant in the hospital, out of them – chief doctor, head of the ambulatory-diagnostic department and 7 doctors’ positions. There is a critical need in infectious disease specialist and

27 http://hudoc.echr.coe.int/eng?i=001-179013; 28 https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22solopova%22],%22itemid%22:[%22001- 194008%22]}; 29 https://www.radiosvoboda.org/a/29223266.html; 30 https://www.slidstvo.info/texts/pravosyllya-chomu-katuvannya-za-gratamy-majzhe-ne- rozslidujetsya/; 31 https://helsinki.org.ua/en/articles/uhhru-monitoring-situation-with-prison-conditions-and- provision-of-medical-services-for-the-convicts-in-the-penitentiary-establishment-no-85-is-appalling-and- shall-be-immediately-rectified/;

12 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

TB specialist. In the hospital, where surgeries should be carried out, there are no anesthesiologist and nurse anesthetist, the ultra-sound diagnostic is not carried out. That is why planned surgeries, requiring anesthesia, are not carried out for a long period already. In the discussion, a number of convicts, which were transferred from other penitentiary establishments with the aim of undergoing surgery, complained about absence of planned surgeries. The convicts are transferred to Bucha hospital also for urgent surgeries. Such situation shall be immediately rectified. 57. In November 2018, a Health Care Center was established at the State Criminal Enforcement Service, which was intended to help ensure the continued provision of appropriate medical care to convicts and people in detention. But the fact of interruption of antiretroviral therapy for HIV-positive prisoners on long terms (10 days and more) and the late provision of medical assistance was repeatedly recorded last year32. 58. With the appliance of the penitentiary reform the special medical boards (hereinafter – CMB) in the detention facilities were dismantled. Under the authority of CMBs was placed the conclusion on the existence of a convict’s disease among the list of diseases, which allow the detention facility to submit to the court and release the convict from serving the sentence. Due to the elimination of CMBs and the failure to create new ones, the administration of detention facilitues are deprived of the opportunity to release convicts for health reasons. Under the circumstances where the convicts themselves apply to court, the latters refuse to grant a petition for release due to the lack of CMBs. This issue is as systemic as the absence of licenses for medical units, which was presented in paragraph 28 obove. 59. Another major problem is the lack of a license to carry out medical activities in certain medical parts. As a matter of fact, such medical units are engaged in illegal medical activities and should therefore be closed33. 60. The problem of accounting for medicines remains urgent. In some prisons, there are no pharmacists who can keep records of the drugs properly: all the documentation is a notebook in which paramedics record what drugs they took at the pharmacy. But such improper record keeping confirms that everything is under control34. 61. Prisoners address their medical concerns to the medical staff during his daily visits to the cells, otherwise, in case of acute illness, their medical concerns should be addressed to the prison officialls. 62. While prisoners enter the medical office in groups there is a risk of disclosure of medical secrecy.

32 https://notorture.org.ua/2019/06/03/problemi-ukrainskih-tjurem-shho-vikrivajut-monitoringovi- viziti/?fbclid=IwAR2W4hy2i3yhFJayaQl0SK8h3Q8ekDMzdqHFZiKihXWpsBxKuZa6cw96Mm4; 33 https://notorture.org.ua/2019/06/03/problemi-ukrainskih-tjurem-shho-vikrivajut-monitoringovi- viziti/?fbclid=IwAR2W4hy2i3yhFJayaQl0SK8h3Q8ekDMzdqHFZiKihXWpsBxKuZa6cw96Mm4; 34 https://freezone.org.ua/problemy-ukrayinskyh-tyurem-shho-vykryvayut-monitoryngovi-vizyty-v- ustanovy-vykonannya-pokaran/;

13 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

63. The procedure does not specify a time period in which an individual is to be transferred to the appropriate health institution to receive the required treatment. In some cases hospitalization takes 3-4 months35. 64. Officials of the State prison system often do not arrange for the provision of immediate health care, citing a lack of vacancies, finances and security personnel. 65. Legislation provides that individuals can see a doctor by their own choice. Despite the ability, the convict can`t get such a service due to the absence of specialists in the detention facility. There exists a large problem concerning the medical staff in the prison system. Also, there is an issue to get accessment of civilian medical treatment, beyond the detention facility, when complex surveys needed. 66. The provision of adequate medical assistance is also hindered by the lack of medicines and medical equipment. As a result of minimum funding for the purchase of drugs, there is a lack of sufficient broadspectrum antibiotics, corticosteroid, anti-fungal, anti-inflammatory ointments for the treatment of allergie diseases, psoriasis, eczema, and other diseases. Existing drugs are also often used incorrectly. 67. Aside from general examinations, additional and required diagnostic procedures are not performed. 68. There exists no single method of treatment for individuals simultaneously ill with HIV/AIDS and tuberculosis, or other illnesses that affect the liver (such as Hepatitis C). For example, antiretroviral treatment, used to treat HIV infection, has adverse effects on the liver, which is primarily affected by the Hepatitis C virus. The treatment of patients with multiple illnesses is therefore often administered at a low level, as doctors working in prisons do not have sufficient skills to provide the necessary quality care. 69. Overall, the provision of medical care does not meet European standards according to ECHR`s case-law. ln addition, special attention should be paid to the non-compliance of sanitary standards for individuals in custody, particularly given that improper sanitation can foster the spreading of diseases such as AIDS, tuberculosis, hepatitis C, etc. 70. The Global Fund to Fight AIDS, Tuberculosis and Malaria is the biggest donor of Ukraine, but the amount of funding is decreasing every year. The question of ensuring the sustainability of services in penitentiary institutions remains open. 71. Ukraine needs an intersectoral approach to HIV prevention. There is no clear what mechanisms will be put in place to maintain the results that have already been achieved by NGOs. 72. There is still a lot of uncertainty about healthcare reforms, in particular, the detail how they will be implemented.

35https://drive.google.com/file/d/10W46D5i7eGRy0xBel79xbAowJ7WpVaev/view?fbclid=IwAR02Yn0 UYJ_eld1H_NDqJjKkismk1snLYSPuQi92rag4wEswLagCL3gbAwU;

14 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

Recommendations 73. The authorities should ensure the availability of HIV screening for arrested and sentenced prisoners, ensure confidentiality of information about persons who are HIV-positive, provide medical assistance to imprisoned prisoners, provide conditions that reduce the risk of infection for HIV, preventing the spread of HIV infection medically, make disinfectants available for arrested and convicted to use, provide the availability of condoms for further use by those arrested and sentenced. 74. It is also necessary to create conditions for the provision of sanitary-epidemic mode and in sufficient numbers to provide medical units institutions with surgical, gynecological, dental instruments and auxiliary means of protection, conduct mandatory interviews on HIV/AIDS prevention and provide treatment for drug addiction. 75. The national legislation should take into account the provisions of Basic Principles for the Treatment of Prisoners, adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990; Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the first United Nations Congress on the Prevention of Crime and the Treatment of Offenders, A/CONF/611; The Standard Minimum Rules for the Treatment of Prisoners of the Council of Europe (Resolution (73) 5), adopted by the Committee of Ministers on 19 January 1973 at the 2l7th meeting of the Ministers' Deputies. 76. The legislator must ensure that the basic requirements for medical and health personnel are provided in detention centres. Firstly, every penitentiary institution shouId have a general medical practitioner who has the necessary qualifications. If necessary, and in the event of the availability of sufficient funding, the facility can provide for additional vacancies for specialized medical practitioners, such as immunologists, dentists, psychiatrists, and others. It should be ensured that the patient can request a doctor of his choice, and that the doctor has immediate access to the patient in any time. 77. Persons in detention must be examined by relevant medical professionals, who are able to address their particular health complaints. ln the absence of a professional doctor or the necessary equipment in prisons, the prison administration has to transfer the person to an appropriate medical institution to receive the necessary help. The referral to specialized health agencies must be done expediently. 78. The medical units in detention centres should have the appropriate supplies, equipment, and sufficient number of medicines for persons with illnesses. 79. ln the event that the administration or doctors in the detention centres become aware that there is a possibility that an inmate has a specific disease, they should immediately conduct the appropriate research to confirm or refuse this information. 80. The treatment of individuals suffering form serious diseases (such as AIDS, tuberculosis, or Hepatitis C), must be conducted by a medical specialist. Such individuals must be kept in proper sanitary conditions. ln the event that the persons' condition begins to further deteriorate, they should be transferred to a

15 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

special chamber within the detention centre, or to a specific medical institution, in order to stabilize their condition. There should be no limitation on the amount of time an individual can stay in such facilities. 81. The decision to hospitalize a patient should not be made by the chief of detention facility. Hospitalization must occur upon the decision by the doctor that it is necessary, and should be carried out as soon as possible, but in no more than three days. The legislator must ensure that the absence of vacancies must not serve as sufficient justification for refusing hospitalization. A person must be hospitalized at the nearest specialized medical establishment that has vacancies. 82. The legislator must clearly indicate a procedure for the release of an individual due to illness. lt should be mandatory that a person be transferred to the medical unit of a detention centre, and the decision to release the person should be made as soon as possible, and implemented immediately. 83. The "adequacy" of medical assistance should be clarified, that the authorities must ensure that diagnosis and care are prompt and accurate and that - where necessitated by the nature of a medical condition - supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee's health problems or preventing their aggravation. 84. The medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population.

Executive Director of the Ukrainian Helsinki Human Rights Union

16 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

DGI 28 JAN. 2020 YKPAÏHA SERVICE DE L’EXECUTION DES ARRETS DE LA CEDH YDOBHOBA)KEHHÜ. y CDPABAX €BPOIIEÜ.ChKOro CY,ll;Y 3 IIPAB JIIO,[l;HHH

Agent before the European Agent du aupres de la Court of Human Rights Cour Europeenne des Droits de l'Homme Ukraine l'Ukraine ayn. ApxiTeKTopa fopo):{enbKoro, 13 , 13, Horodetskogo Arkhitektora St. M. KHÏB, 01001 , YKpaïHa· Kyiv, 01001, Ukraine

Ten.: +380 44 364-23-93, q>aKc: +380 44 271-17-83 E-mail: [email protected],[email protected],http://www.minjust.gov.ua

Mr Pavlo Pushkar Head of Division Department for the execution of judgments of the European Court of Human Rights Directorate of Human Rights Directorate General Human Rights and Rule of Law Council of Europe F-67075 Strasbourg Cedex

As to the execution ofthe ECtHRjudgments in Kats and Others and related cases

Dear Mr Pushkar,

On behalf of the Government of Ukraine please let me express my sincere appreciation for the Department for the Execution of Judgments of the European Court of Human Rights kind assistance for dealing with various structural problems in Ukraine regarding poor material conditions in pre-trial detention centres and prisons, as well as the inadequacy of medical care in general and for infectious diseases in particular, which were found by the European Court in a number of judgments in cases against Ukraine, namely: Kats and Others (app. no. 29971/04), Salakhov and lslyamova (app. no. 28005/08), Karpylenko (app. no. 15509/12), Logvinenko (app. no. 13448/07) etc. The Government of Ukraine note that they took into consideration the Ukrainian Helsinki Human Rights Union (the "UHHRU") comprehensive analyse of the situation regarding the problems at speeds of HIV diagnosing, inappropriate medical treatment for an HIV-related infection, lack of proper diagnostic examinations and staff shortage in the healthcare institutions in the State Penitentiary Service of Ukraine of the recommendations for their genuine interest to the problems of medical

~~ UB - y _ MiHiCTepCTB0 IOCTHL.111 KpalHH Nc:?3926/326-30-20/5.2.1 BiA 27.01.2020 '. nilJ.1HHa I.IO. (3aCTynHHK MiHiCTpa IOCTHl.li YKpaÏHH - YnOBHOBa>K€HHl1 y cnpaeax : €epone11CbK0ro CVAY 3 npae lllOAHHH) · " 27.01.2020 17:28 DH-DD(2020)94: Rules 9.2 + 9.6 NGO & reply from Ukraine in Kats and Others. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. treatment in prison' s hospitals, medical departments of the pre-trial detention centres and related problems in Ukraine.

In order to prepare detailed and unbiased information for the authorities submission in the above cases the Government of Ukraine assure that the UHHRU's key recommendations given under the Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, will be translated into Ukrainian and disseminated among all authorities concerned.

The Government of Ukraine reiterate that they are open to any comments and recommendations provided by the non-govemmental organisations which will be able to facilitate the execution of the European Court' s judgments, and will further inform the Committee of Ministers of their subsequent actions.

Yours sincerely,

Ivan LISHCHYNA Deputy Minister - Agent before the European Court of Hu man Rights