It is a rare case: Ukrainian court ordered the penitentiary establishment and Healthcare Center of the State Penitentiary Service (SPS) to provide HIV infected convict with medical assistance in line with MoH clinical protocol. To tell the truth, the patient already received treatment by the order of ECHR, which applied the Rule 39.
Oleksandr K. was imprisoned in spring 2017. By that time, he was for a long time ill with urinary stone disease and hydronephrosis. Besides he was diagnosed viral hepatitis C and HIV. One year before the imprisonment Oleksandr already undergone surgery for right kidney stenting. But it was still necessary to remove urine calculus from right ureter. The men did not have proper examination and treatment in the penitentiary establishment, so his condition deteriorated: because of intolerable kidney pains he could hardly move.
In June 2018 Oleksandr was taken to hospital for convicts at Bucha hospital No 85, but there were no conditions for proper treatment. In July the lawyer of Kharkiv Human Rights Protection Group Vasyl Melnychuk filed the application with Bucha penitentiary establishment No 85 and Healthcare center of the SPS of Ukraine, where he asked to provide the convict Oleksandr K. with the medical assistance in line with the clinical protocols approved by the Order of the MoH of Ukraine. According to the consultative medical report of the urologist, Oleksandr needed hospitalization to the department of urology, ultrasound investigation of the urine-excretory system, plain urography and intravenous pyelogram, removal of the stent from the right ureter duct, and surgery – the urine calculus and stent should have been immediately removed. The time passed by and the man was suffering without effective assistance.
In September Vasyl Melnichuk filed with the court the case regarding unlawful inaction of the administration of the penitentiary establishment and Healthcare center of the SPS. In September Oleksandr was returned from the prison hospital to the penitentiary establishment. There his condition became so poor, that he had to be taken to Kryvyi Rih for medical examination – in prison van, without stretchers and shock absorbers. Oleksandr suffering from pain syndrome hardly endured the trip.
Vasyl Melnychuk was forced to apply to European Court of Human Rights, and on December 7 ECHR applied the Rule 39, the procedure allowing to apply emergency measures of human rights protection in case life threatening situation. Already on December 18 Oleksandr underwent a surgery.
Meanwhile Ukrainian court system was not that quick: Kyiv District Court handed over the case to the Irpin City Court and the latter postponed the consideration for more than a month. In the meanwhile, by the order of the Sixth Administrative Court of Appeal the case was again retuned to Kyiv District Administrative Court for further consideration.
Only now, nearly in a year’s time from filing the case and in half a year after the surgery the court ordered:
- To satisfy the claim in full.
- To recognize as unlawful inaction of the State establishment “Bucha penitentiary establishment No 85” and State establishment “Healthcare Center of the State Penitentiary Service” regarding non provision to the convict… of the medical assistance in line with the protocol approved by the Order of Ministry of Health of Ukraine from 06.12.2004 No 604 “On approval of the clinical protocols for “Urology”.
- To oblige State establishment “Bucha penitentiary establishment No 85” and State establishment “Healthcare Center of the State Penitentiary Service” to provide medical assistance to the convict in line with the order of the Ministry of Justice and the Ministry of Health of Ukraine … “On approval of the procedure of organization of the medical assistance provision to the convicts” and the Order of Ministry of Health of Ukraine “On approval of the clinical protocols for “Urology”.
To the question as to what consequences can have such decision, taking into account that the patient already received assistance, the lawyer Vasyl Melnychuk replied: “None. This will be just additional proof for the ECHR as to the inappropriateness of his treatment”.
Prepared by Iryna Skachko for KHPG
Ukrainian Helsinki Human Rights Union implements the project “Development of the legal network for protection of the people living with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.