On May 16, 2019 UHHRU Strategic Litigation Center (SLC) won in European Court for Human Rights precedent case Logvinenko v. Ukraine. This case is the first out of 30 cases of HIV infected clients with which UHHRU lawyers were dealing during last 2 years as part of activities on protecting the rights of people living with HIV/AIDS, representatives of key PL HIV communities and people with TB. Lawyers Olena Protsenko and Oryna Chylutyan worked on protection of client’s rights in this case on behalf of UHHRU.
UHHRU SLC Lawyer Olena Protsenko shares the experience of protection of HIV-infected clients in ECHR and emphasizes the nuances of the precedent case Logvinenko v. Ukraine.
“At the statistics can be traced only from 2012, I can say that during this period 26 cases in ECHR were communicated to Ukrainian Government, in other words the defendant country prepared its counter arguments for such complaints.
Much more complaints we filed but not communicated yet. Though ECHR’s statistics is not recorded, I can say that as of today only UHHRU follows up 4 cases of persons with HIV and/or TB in ECHR.
Among the most common topics is not providing medical assistance in pre-trial detention centers or in penitentiary establishments. We also raise in ECHR the issue of not providing antiretroviral therapy in detention facilities. In one of our cases, in 2018, ECHR applied “urgent measures” – obliged Ukraine to urgently transfer the client to the hospital for surgery without which he could die.
Proper therapy of the convicts in Ukraine, time and again, was the subject for consideration by European Court for Human Rights. Unfortunately, in such litigations the state always loses, as lack of treatment provided to the convicts is a systematic and well known problem.
Case Logvinenko v. Ukraine
UHHRU client Oleksandr Logvinenko for the second time already won the case against Ukraine regarding poor medical services.
Mr Logvinenko is a life-term prisoner, who serves the sentence in Dnipropetrovsk penitentiary establishment No 89. He is ill with HIV and TB, in 2011 ECHR already ruled that Ukraine did not provide him with treatment of these diseases. At their background Mr Logvinenko got ill with hepatitis C – disease, which is practically not treated in Ukrainian prisons.
While the situation with anti-retroviral therapy for HIV positive convicts improved recently, treatment of TB and hepatitis remains at extremely poor level.
The claimant was not included into hepatitis treatment program in penitentiary establishments, which are implemented by charitable organizations, because of a virus type.
There are no drugs from hepatitis, funded at the budget expense, in pretrial detention centers and penitentiary establishments. This way the authorities just ignore people, who slowly die under their control, as hepatitis C progress into cirrhosis or liver cancer.
The state does not object systemic nature of the problem, however, it is not in a hurry to solve it, which is well proved by Logvinenko’s case – in 2001 he had low intensity TB infection in the part of left lung, because of irrelevant treatment in the penitentiary establishments the process covered both lungs, turned into chronic, resulted in ruining of the tissues and appearance of tuberculomas, and development of chronic bronchitis and hepatitis C.
The client applied for UHHRU’s help with representing him in European Court. Earlier the Court applied to him urgent measures because of hepatitis – obliged the state to run medical examination and provide with treatment, and considered the case as a matter of priority.
Because of that decision in this case was taken quickly – as UHHRU lawyers commented on the position of Ukrainian Government just in autumn of 2018. As a rule, the consideration of a case could take another 2-3 years.
Special attention in the case is devoted to improper conditions of imprisonment of the applicant – lack of space, humidity and cold in the wards, lack of walks in the fresh air and poor hygiene measures, poor lighting and nutrition. This is the first judgment of ECHR regarding penitentiary establishment No 89 in Dnipropetrovsk.
ECHR also pointed out that Mr Logvinenko did not have effective means of legal protection in the country – neither the court, nor prosecutor’s office were able to resolve his problem. Providing the convicts with treatment and running necessary medical examinations will be possible only in the case of quality and not formal healthcare reform in the penitentiary system.
We also follow up in ECHR more unusual cases. One of them related to the procedure of releasing from the prison of the client, who while serving the sentence became disabled because of not getting the therapy for infected joint. The court released the convict on health grounds, however he had to get home to Volnovakha. The state did not do anything to help the disabled person to get home. In the penitentiary establishment they explained that they would just take him behind the gates and leave him there. Though the volunteers of Charitable Organization “100%LIFE” helped him to get home, we raise the issue to the European Court to oblige the state to take care for transportation of the ill convicts.
Another case related to the obligation of the state authorities to ensure personal privacy of the convict and her newborn child. As the client got infected with TB in the penitentiary establishment the child was taken away from her, to be protected from the infection. However, when the doctors proved that she was no more dangerous for the child, the child was still not returned to the mother for 4 months.
The cases described above are much rarer than the problem of not providing treatment in the pre-trial detention centers or in the penitentiary establishments, thus such cases are more complicated. They are not supported by set and definite practice in the Court.
Another difficulty is working with the convicts in general. They are under control and often under pressure of the administration of the detention facility. They can be forced to waive the complaint and the counsel. Thus it is important to find the client who would not be afraid to go all the way through fighting for his/her rights.
It is not a secret that there are lot of ECHR judgements stating that the state did not fulfil its commitments to provide relevant treatment to the convicts and detained. Thus we can presume that soon the court will adopt “pilot judgement” – will oblige Ukraine to solve the structural problem of absence of relevant treatment of convicts. For such cases Ukraine reports each quarter to the Committee of Ministers of the Council of Europe.
For more unique cases we can also expect interesting judgements, which will be the precedent and could be used by other clients for protecting their rights”.