The ECHR judgment of March 12, 2019 in the case of Petukhov v. Ukraine (No. 2) (application No. 41216/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, the president’s pardon was successfully considered as the only way to mitigate the sentence of life imprisonment, as well as the lack of medicines for the treatment of tuberculosis. The case has violated the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant was sentenced to life imprisonment. He complained, inter alia, that during his detention he had not been provided with adequate medical assistance and that his de facto and de jure life imprisonment could not be commuted to a milder sentence.
QUESTIONS OF LAW
Regarding compliance with Article 3 of the Convention (substantive aspect).
(a) Providing medical assistance during the period of detention. The applicant's state of health was irreversibly deteriorating. In the period relevant to the circumstances of the case, the applicant had a relapse of pulmonary tuberculosis, and his further treatment was found to be futile.
The parties to the case did not dispute the fact that the applicant was regularly examined by various doctors, who underwent screening tests and laboratory tests. Accordingly, it cannot be said that the Ukrainian authorities left the applicant without any medical assistance. However, it is necessary to determine whether the measures taken by the Ukrainian authorities to treat the applicant were effective. The Ukrainian authorities several times admitted that there were not enough anti-TB drugs in the penitentiary institution. The failure of the Ukrainian authorities to ensure a regular, continuous supply of essential anti-TB drugs for sick prisoners has become a key factor in the unsuccessful treatment of tuberculosis in the applicant.
Earlier, the European Court drew attention to the poor quality of medical care and the lack of protection against infection with tuberculosis in prisons in Ukraine. Ukraine is among the countries with the highest rates of unsuccessful treatment for tuberculosis. The incidence of multidrug-resistant pulmonary tuberculosis continues to increase, and one of the reasons for this is the continuing shortage of first-line drugs and the lack of access to a complete second-line treatment regimen, especially in prisons. In addition, there was no legal framework to provide palliative care in prisons, and therefore the applicant was not provided with any special medical assistance.
RESOLUTION
In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).
(b) Non-softening life imprisonment. A person sentenced to life imprisonment in Ukraine may be prematurely released in two cases: firstly, in the presence of a serious illness that impedes the further serving of imprisonment, and secondly, when a pardon is made against such a person.
Replacing life imprisonment with a milder sentence if a person is ill with a fatal disease is tantamount to allowing a prisoner to die at home or in a hospice, and not in custody, could not be considered a “prospect of release” in the sense that the European Court interprets this concept. Accordingly, the regulation and application of the mechanism of presidential pardon, which is the only way to replace life imprisonment with a milder sentence in Ukraine, required more careful study.
The Regulation on the Procedure for Pardoning establishes criteria and conditions for replacing life imprisonment with a milder type of punishment. This normative legal act could be interpreted as referring to the legitimate penological grounds for the continuous serving of a sentence of imprisonment. However, it should be noted that these considerations were to be applied in the context of the wider restriction that “persons convicted of serious or especially serious crimes or having two or more convictions for committing intentional crimes ... may be pardoned in exceptional cases under contingency. " Obviously, all persons sentenced to life imprisonment belonged to this category. It is not clear what was meant by “exceptional cases” and “extraordinary circumstances”. Thus, persons sentenced to life imprisonment do not initially know what they could do and under what conditions in order for them to consider the issue of release.
The description of the criteria and conditions for replacing life imprisonment with a milder punishment in the Regulation on the procedure for pardon lacked clarity and certainty. The decisions taken following the consideration of the application for clemency did not require the setting out of motives, nor did they establish the obligation to publish reports on the consideration of applications for clemency. The lack of an obligation to indicate the reasons for the decisions made was compounded by the fact that there was no mechanism for reviewing these decisions in court. In such circumstances, it could not be recognized that the exercise by people sentenced to life imprisonment of their right to review a sentence of life imprisonment by pardon by the president was accompanied by sufficient procedural guarantees.
The criminal policy of European states focuses on the re-socialization of persons deprived of their liberty. Although the authorities of the Contracting States are not responsible for the re-socialization of persons sentenced to life imprisonment, they are nevertheless required to provide such persons with the opportunity to be re-socialized. The obligation to provide this opportunity must be seen as an obligation regarding the means, and not the achievement of a specific result. However, this obligation gives rise to a positive obligation to ensure conditions of detention in relation to persons sentenced to life imprisonment, which would be consistent with the goal of re-socialization and allow these people to make progress in their re-socialization. Persons sentenced to life imprisonment in Ukraine were detained separately from other prisoners and spent up to 24 hours a day in their cells, usually designed to support two to three people, and they had little opportunity to participate in organized activities and associations . The existing conditions for the detention of persons sentenced to life imprisonment in Ukraine did not meet the goal of re-socialization.
RESOLUTION
In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).
In application of Article 46 of the Convention. The applicant's situation regarding the impossibility of changing life imprisonment to a milder sentence indicates a systemic problem requiring general measures. More than 60 similar complaints are pending before the Court, and many more may be filed in the future.
Contracting States enjoy wide margin of appreciation when deciding on the terms of sentences related to the deprivation of liberty for the commission of specific crimes. The mere fact that life imprisonment can ultimately be served in full does not make this punishment contrary to Article 3 of the Convention. Accordingly, the revision of sentencing decisions in the form of life imprisonment did not have to lead to the release of the corresponding convict. For the purposes of the proper execution of this Decree, the Ukrainian authorities should reform the system for reviewing decisions on sentencing in the form of life imprisonment. The mechanism for reviewing such decisions should ensure that, in each case, the issue of whether the long term of detention was justified by legitimate penological grounds is considered, and should provide persons sentenced to life imprisonment with an opportunity to foresee with some degree of certainty what actions and on what conditions they must be executed so that the question of their release may arise in accordance with the standards developed in the case-law of the European Court.
COMPENSATION
In application of Article 41 of the Convention. The Court awarded the applicant 750 euros (EUR) in respect of pecuniary damage, EUR 10,000 (EUR) in respect of non-pecuniary damage caused by failure to provide adequate medical assistance and decided that finding a violation of the Convention would constitute sufficient just satisfaction in respect of non-pecuniary damage caused by the applicant in violation of the impossibility replacing life imprisonment with a milder punishment.