Medical assistance for prisoners with a physical illness
II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 75. The relevant extract of the Constitution of Ukraine provides: Article 27 “ Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...” Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” Article 55 “Human and citizens'rights and freedoms shall be protected by the courts. Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Article 56 “Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties .” B. Code of Criminal Procedure, 1960 76. The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed. That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4). 77. Article 94 of the Code provides that criminal proceedings shall be instituted in the following cases : “ Criminal proceedings shall be instituted following : ( 1) applications or communications from ... individuals; ... ( 5) direct detection of signs of a crime by a body of inquiry, investigation, a prosecutor or a court. A case can be instituted only when there is sufficient information indicating a crime.” No criminal proceedings can be brought in the absence of a corpus delicti (Article 6). 78. According to Article 165-1 § 3 of the Code, the decision of the body of inquiry, investigator, prosecutor or court to apply, change or discontinue a preventive measure (including pre-trial detention) should be communicated to the person concerned immediately. 79. Article 236-1 of the Code provides: “Within seven days of notification, a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...” 80. The relevant part of Article 236-2 of the Code provides: “An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged. The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed. Having examined the case, the judge ... may take one of the following decisions: (1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries... (2) to dismiss the appeal ...” C. Civil Code, 2003 81. Articles 1166 and 1167 of the Civil Code, as in force since 1 January 2004, provide for the possibility to claim pecuniary and non-pecuniary damages inflicted as a result of the unlawful decisions, actions or inactivity of an individual or a legal entity, including State bodies. D. Code of Civil Procedure, 2004 82. Article 201 § 1 (4) of the Code of Civil Procedure provides in its relevant part: “The court must suspend its examination of a case if ...it is impossible to hear that case before the termination of another set of civil, criminal or administrative proceedings.” E. Pre- Trial Detention Act, 1993 83. Article 20 § 4 reads as follows: “Rulings, judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre.” F. Medical Assistance and Sanitary Rules in SIZO, approved by Order No. 3/6 of the State Department for Enforcement of Sentences and the Ministry of Health on 18 January 2000 ( «Порядок медико - санітарного забезпечення осіб, які утримуються в слідчих ізоляторах та виправно - трудових установах Державного департаменту України з питань виконання покарань, затверджений наказом Державного департаменту України з питань виконання покарань та Міністерства охорони здоров'я України від 18 січня 2000 р. N 3/6 ») 84. In accordance with Section 6.1.3 of the Rules, all persons should undergo an initial medical examination on their arrival at the SIZO. The results of this examination are entered in the SIZO medical register. During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test. III. RELEVANT INTERNATIONAL DOCUMENTATION A. Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers'Deputies) 85. The relevant extracts from the European Prison Rules read as follows: “ Medical services 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers. ... 30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2. The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. ” B. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [“CPT”] 86. The relevant extract from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 reads as follows: “125. In addition to tuberculosis, the Ukrainian prison system is currently faced with an increase in the number of HIV-positive prisoners (Between 1987 and January 2002, 8,046 HIV-positive prisoners were identified. As of 1 October 2002, the prison system had 1,577 HIV-positive prisoners and 17 prisoners who had developed AIDS. It has to be added that the World Bank approved a $60 million loan for a tuberculosis and HIV/AIDS control programme in Ukraine, which includes considerable support for the penitentiary system ). The Department for the Execution of Sentences has therefore devised a priority strategy for curbing the spread of the virus, based on an awareness and information campaign targeting prisoners and prison staff, the introduction of confidential voluntary screening tests and follow-up after the tests, the provision of means of prevention and disinfection for prisoners and the absence of discrimination against HIV-positive prisoners. ” THE LAW I. SCOPE OF THE CASE 87. The Court observes that further new complaints under Article 3 of the Convention were submitted after communication and in response to the Government's objections as to the admissibility and merits of the application, and concerned the authorities'failure to account for the injuries to Olga Biliak's hands, legs, left cheekbone and chin disclosed by the autopsy. The applicants also complained under Article 5 § 3 of the Convention that Olga Biliak had not been released pending trial; they thus challenged the whole period of her detention from 22 April 2003 until 1 February 2004. 88. In the Court's view, the new complaints are related in a general sense to the present case, but do not constitute an elaboration of the applicants'original complaints to the Court communicated to the Government by the decision of 14 March 2006. The Court considers, therefore, that it is not appropriate to take this matter up separately now in the context of the present application (see, inter alia, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005, and Lyashko v. Ukraine, no. 21040/02, § 29, 10 August 2006 ). II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION 89. The applicants complained that the authorities had failed to provide Olga Biliak with the appropriate medical care while in detention and were thus responsible for her death. They also complained that the investigation into her death had been neither adequate nor effective. 90. The applicants relied on Article 2 of the Convention, which, in its relevant part, reads as follows: “1. Everyone's right to life shall be protected by law. ...” 91. They also relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 92. The Government contended that the applicants'complaints about the death of Olga Biliak were premature since the applicant's civil action against the SIZO for non-pecuniary and pecuniary damage incurred as a result of the death of their daughter and mother was still under consideration by the domestic courts. They further submitted that the criminal complaint lodged by the applicants before the prosecutor's office was an effective remedy and that they had made successful use of it. Moreover, the investigation into the applicants'criminal complaint was still pending. 93. The applicants stated that the remedies referred to by the Government were ineffective in their case. 94. The Court recalls at the outset that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased. For example applications have been brought by a deceased's wife ( Aytekin v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased's mother ( Çiçek v. Turkey, no. 25704/94, 27 February 2001), a deceased's father ( Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III (extracts)) and a deceased's brother and sister (see respectively Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV and Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002). Therefore, the applicants in the present application can claim to be victims of the alleged violations under Article 2 of the Convention. 95. The Court further recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV ). 96. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means among other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54). 97. The respondent Government argued that two avenues of recourse were available to the applicants, namely a claim for damages and a criminal complaint. 98. As regards the civil-law remedy, the Court recalls that in the cases of Afanasyev v. Ukraine ( no. 38722/02, § 77, 5 April 2005) and Kucheruk v. Ukraine (no. 2570/04, § 112, 6 September 2007), it dismissed the similar objection of the Government on the ground that in the absence of any results from the ongoing criminal investigation, the civil courts were prevented from considering the merits of claims relating to alleged criminal offences. In particular, the Court found that a claim for compensation could be lodged only against a particular person or persons. The remedy became futile if the offender was not identified and prosecuted. In particular, in the present case the national courts recognised the impossibility of deciding on the applicants'civil claims until the persons responsible for Olga Biliak's treatment were identified (see paragraph 74 above), and the Government did not provide any explanations as to whether this was possible in civil proceedings. Therefore, the Court sees no reason to depart in the present case from its previous findings. 99. As regards criminal-law remedies, the Court considers that this limb of the Government's preliminary objection raises issues concerning the effectiveness of the criminal investigation in establishing the facts concerning, and responsibility for, the events of which the applicants complained. These issues are closely linked to the merits of the applicants'complaints under Articles 2 and 13 of the Convention. In these circumstances, it joins the preliminary objection to the merits of the applicants'complaints. 100. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. B. Merits 1. Alleged failure of the Ukrainian authorities to protect Olga Biliak's right to life 101. The applicants maintained that Olga Biliak had died in detention because she had not received timely and adequate medical aid and that the SIZO management had been in possession of all the information needed in order to take adequate measures to save Olga Biliak's life. In particular, they indicated that the SIZO management had been well aware of Olga Biliak's HIV status since September 2003 at the latest and not merely since January 2004 as the Government had submitted. Moreover, Olga Biliak had been suffering not only from the HIV infection but from numerous other diseases for which she had also failed to receive any treatment. 102. The Government claimed that Olga Biliak's death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness she had acquired prior to her placement in custody and of which she had failed to inform the prison authorities. The prison doctors had examined her on many occasions and prescribed appropriate medical treatment and medication. Their recommendations had been fully complied with. As soon as the prison authorities had started to suspect that she was HIV-positive they had undertaken all necessary measures, including requesting the prosecution authorities to authorise her release. According to the Government, all Olga Biliak's health complaints had been addressed in timely and adequate fashion by the prison doctors, and the State could not bear responsibility for any suffering of which she had not informed the authorities. The Government reiterated that since the investigation into the circumstances of Olga Biliak's death was still pending, they could not comment on the existence or absence of a violation of the Convention provision. 103. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “ use of force ” disproportionate to the legitimate aims referred to in sub-paragraphs ( a) to ( c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001 ‑ III). 104. Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. Having held that the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see, inter alia, Keenan, cited above, § 111; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-...), the Court considers that, where a detainee dies as a result of a health problem, the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person's right to life ( see Slimani v. France, no. 57671/00, § 27, ECHR 2004 ‑ IX (extracts) ). 105. The Court notes that from 14 April 2003 until her death on 1 February 2004 Olga Biliak was in custody and, accordingly, under the control of the Ukrainian authorities. On her arrival at the SIZO, Olga Biliak was examined by a doctor and was found to be generally healthy (see paragraph 24 above). However, throughout her detention she suffered from various chronic illnesses such as a gastric ulcer, chronic bronchitis, pyelonephritis and other conditions which, exacerbated by her HIV infection, required constant medical supervision and appropriate treatment. 106. The Court next notes the Government's argument that due to Olga Biliak's reluctance to disclose her HIV status, the authorities learned of this only at a very late stage. In this respect the Court observes that in a letter of 26 September 2003 the first applicant informed the SIZO management of the fact that his daughter was HIV-positive. The Court therefore rejects this submission of the Government and finds that at least as far back as September 2003 the prison authorities should have been aware of Olga Biliak's HIV status. 107. In the light of this finding and having regard to the vulnerability of HIV-positive persons to other serious diseases, the Court finds the lack of medical attention to Olga Biliak's health problems striking. Although she was suffering from numerous serious diseases her treatment seems to have been very basic. 108. In particular, in December 2003 and January 2004, when Olga Biliak developed serious respiratory problems, suffered from an extremely high body temperature and was losing weight rapidly – a state of affairs not contested by the Government –, her health problems were not addressed accordingly, and it was only on 21 January 2004 that a more in-depth diagnosis of her state of health was made. 109. Moreover, the prison authorities not only refused to transfer Olga Biliak to a specialist hospital but also failed to move her to the medical wing of the SIZO. She remained on general location even after 22 January 2004, when the management of the SIZO acknowledged the need for her to be admitted to hospital and requested the investigating authorities'authorisation to release her on medical grounds. 110. On 13 and 19 January 2004, that is, forty-four and fifty days respectively after Olga Biliak's condition started to deteriorate, the prosecution authorities refused her and her lawyer's requests for release, without addressing her health issues. Moreover, the prison management's application for her urgent release was acted upon only seven days later and the decision to release her was processed with a four-day delay, during which time she died of HIV-related diseases. 111. The Court notes that according to the report of 17 November 2006 the death of Olga Biliak was indirectly caused by the inadequate medical assistance provided to her while she was in detention. The Government did not contest the accuracy of this report, nor did they produce any other medical evidence to refute this conclusion. 112. Accordingly, the Court finds that there has been a violation of Article 2 of the Convention on account of the Ukrainian authorities'failure to protect Olga Biliak's right to life. 2. Procedural obligations under Article 2 of the Convention 113. The Government maintained that the investigation into Olga Biliak's death had been carried out by the Shevchenkivskyy Prosecutor's Office, a body independent from the prison authorities. The investigators had thoroughly examined the circumstances of the victim's death, commissioned medical examinations and assessed the other available evidence. The somewhat protracted nature of the investigation had been due to the need to obtain medical evidence. The Government reiterated that in the absence of a final decision on the applicants'criminal complaints they could not comment on whether or not there had been a violation of the State's procedural obligations under Article 2 of the Convention. 114. The applicants did not submit any observations in this respect. 115. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII ). In particular, when a detainee dies in suspicious circumstances, an “ official and effective investigation ” capable of establishing the causes of death and identifying and punishing those responsible must be carried out of the authorities'own motion (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 7 4, ECHR 2002 ‑ II). 116. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Accordingly, the competent authorities must act with exemplary diligence and promptness, and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 65, 4 April 2006 ). 117. Turning to the circumstances of the present case, the Court, in the light of the above principles, finds that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances of the death of the applicants'daughter and mother (see Slimani v. France, cited above, §§ 29-34). It considers that the criminal investigation into the death of Olga Biliak revealed some serious inconsistencies and deficiencies. 118. The Court notes at the outset that the investigation into the applicants'complaints has lasted so far for four years and nine months and, apparently, is still pending. During this period the investigation authorities refused on three occasions to institute criminal proceedings, but these decisions were subsequently quashed by the national courts and the case was submitted for further investigation. In particular, in its first decision on 30 April 2004 the Shevchenkivskyy Court gave detailed instructions as to what evidence should be obtained and what circumstances established in the context of the investigation into the death of Olga Biliak. However, as the decisions of that court of 28 September 2005 and 12 July 2007 evince, those instructions have to date not been fully complied with by the investigating authorities. 119. The Court also notes that the Shevchenkivskyy Prosecutor's Office's decisions of 21 February 2005 and 25 December 2006 not to institute criminal proceedings were taken before important evidence – the results of the additional inquiry and the additional medical evidence – had been obtained. Both these decisions were strikingly terse and limited to the finding that in the absence of the above evidence there was no indication that Olga Biliak's death had been caused by violence or medical negligence. 120. The Court further observes that the investigation authorities have never properly addressed the main issue of the applicants'complaints – the quality of the medical treatment provided to Olga Biliak viewed in the context of the diseases she had been diagnosed with. 121. Moreover, some parts of the investigation did not satisfy the minimum requirement of independence. In particular, a part of the witness evidence, namely the statements of Olga Biliak's cellmates, was obtained by the authority directly involved (see paragraph 52 above) (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 70, 4 April 2006). No attempt was made by the prosecution to interview those persons again or to confirm their statements by any other means. This is especially striking given that the statements appear to be identical although provided by eight different persons. 122. Finally, the Court notes that throughout the investigation the applicants were to a large extent excluded from the proceedings. Having no formal status in the proceedings, the applicants were denied access to the file and were never informed or consulted about any proposed evidence or witnesses. On some occasions the applicants did not receive any information about the progress of the investigation and, when it was discontinued on 21 February 2005, they were not informed of this development. On the contrary, the applicants were misled by the letter from the Kyiv City Prosecutor's Office of 11 April 2005, which stated that the investigation was still under way. It was not until August 2005 that they learned of the decision to discontinue it. Moreover, there was a lack of coordination even between the national authorities themselves since the decision of 21 February 2005 was quashed by the higher prosecutor although it had been already quashed by the court (see paragraphs 61-62 above). Accordingly, the investigation did not ensure the investigation and its results with a sufficient element of public scrutiny; nor did it safeguard the interests of the next-of-kin. 123. In the light of these circumstances, the Court concludes that there has been a violation of the respondent State's obligation under Article 2 of the Convention because of the failure to conduct an effective and independent investigation into the death of Olga Biliak. It follows that the Government's preliminary objection (see paragraph 99 above) must be dismissed. 3. Article 13 of the Convention 124. The Government maintained that the civil claim lodged by the applicants was a remedy which the applicants had used effectively. Furthermore, they referred to the possibility for them to claim damages in a civil court. 125. The applicants claimed that the investigation into the death of their mother and daughter, which had been limited to a pre-investigation examination ( дослідча перевірка ), had been insufficient. They also stated that the investigation had lacked independence and had been unduly delayed. Finally, the applicants submitted that their exclusion from the proceedings had been contrary to the requirement of public scrutiny. 126. Having regard to its finding above under Article 2 of the Convention that the authorities failed to carry out an effective investigation into the circumstances of Olga Biliak's death (see paragraph 123 above), the Court does not find it necessary to examine this issue also in the context of Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 127. The applicants complained that during her detention in the SIZO Olga Biliak had been held in inadequate conditions. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 128. The Court notes that the applicants'complaint about the inadequate conditions of Olga Biliak's detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 129. The applicants alleged that Olga Biliak had been held in seriously substandard conditions in the SIZO. 130. The Government contested the applicants'arguments. 131. The Court notes that these complaints arise out of the same facts as those considered under Article 2. In the light of its conclusion with respect to that Article (see paragraph 112 above), the Court does not consider it necessary to examine these complaints separately. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 132. The applicants complained that Olga Biliak's detention between 29 January 2004 and 1 February 2004 had been unlawful. They relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 133. The Government contended that the applicants'complaints were premature since the applicants'civil case was still under consideration by the domestic courts. 134. The applicants stated that there were no effective remedies in respect of this complaint. 135. The Court recalls that while the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right (see paragraph 94 above), the Court has held that the rights guaranteed under Article 5 of the Convention belonged to the category of non-transferable rights (see, Bic and others v. Turkey (dec.), no. 55955/00, 2 February 2006). However, in a number of cases where unlawful detention was related to the disappearances of the applicants'next-of-kin, the Court held that the applicants could also raise complaints concerning such detention and found a violation of Article 5 of the Convention (see, Çakıcı v. Turkey [GC], no. 23657 /94, § 107, ECHR 1999 ‑ IV). Turning to the facts of the present case, the Court notes, without prejudging on the merits of the applicants'complaint, that Olga Biliak had to be released on 29 January 2004 because of her health problems but the decision on her release had not been enforced immediately as the national law provides and on 1 February 2004 Olga Biliak died. Therefore, the applicants'complaint about Olga Biliak's unlawful detention between 29 January 2004 and 1 February 2004 is closely linked to their complaint under Article 2 of the Convention and the applicants should be entitled to allege a violation of Article 5 of the Convention. 136. The Court further notes that in their civil claim against the SIZO the applicants indeed indicated that their daughter and mother had died in the SIZO, inter alia, because of the failure of its management to release her immediately after the relevant decision had been taken. However, the main issue in the applicants'action before the national courts is the claim for compensation for the lack of proper medical assistance afforded to Olga Biliak while she was in detention. Furthermore, the applicants'claim was lodged against the management of the SIZO, whereas it is unclear from the documents provided by the parties whether the latter was solely responsible for the failure to immediately release Olga Biliak. In particular, the date on which the decision of 29 January 2004 reached the SIZO has not been definitively established. Moreover, the Court even has doubts about the date on which this decision was taken, since one day later the Head of the District Police Department requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004, despite the fact that she should have already been released by that date (see paragraph 45 and 70 above). The Court further notes that the civil proceedings in question have already lasted for four years and four months for two instances and are apparently still pending before the first-instance court. In such circumstances, the Court is of the opinion that this remedy cannot be regarded as effective within the meaning of Article 35 § 1 of the Convention. 137. The Court therefore dismisses this objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. B. Merits 138. The applicants contended that the decision of 29 January 2004 on Olga Biliak's release had not been executed for three days. Such a delay could not be justified by the necessity of completing administrative formalities and her detention had thus been unlawful within the meaning of Article 5 § 1 of the Convention. 139. The Government reiterated that in the absence of the final decision in the applicants'civil case, they could not comment as to whether or not there had been a violation of the applicant's right to liberty. 140. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000 ‑ IX ). 141. The Court observes that Article 165-1 of the Code of Criminal Procedure stipulates that the detained person should be immediately informed of the decision to release him or her. Article 20 of the Pre-trial Detention Act provides that the management of the detention centre is obliged to discharge the detained person immediately on receipt of the release order. It is not in dispute that none of the above was done in the present case. 142. The Court therefore finds that the detention of Olga Biliak from 29 January to 1 February 2004 was not lawful within the meaning of Article 5 § 1 (c). 143. There has thus been a violation of Article 5 § 1 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 144. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 145. In respect of pecuniary damage the applicants claimed UAH 2,600 [3] for the money they spent on Olga Biliak's medication while in detention and the costs of her funeral. The applicants also claimed UAH 300,000 [4] in respect of non-pecuniary damage. 146. As to the amount claimed in respect of pecuniary damage, the Government stated that the applicants have produced documents only in support of the medical expenses in the amount of UAH 1,901 [5]. While conceding to the fact that the applicants had incurred certain expenses in connection with Olga Biliak's funeral, the Government pointed out that they had failed to produce any evidence proving the exact sum of these costs. 147. As regards non-pecuniary damage, the Government maintained that the amount claimed by the applicants was unsubstantiated and exorbitant. 148. The Court notes that on 14 December 2006 the applicants were requested to submit by 29 January 2007 their claims for just-satisfaction. They failed to submit any such claims within the required time-limits but a month later without any explanation of the delay. 149. In such circumstances the Court would usually make no award. In the present case, however, the Court has found a violation of Article 2 of the Convention. Since this right is of a fundamental character, the Court finds it possible, exceptionally, to award the applicants EUR 7,000 each by way of non-pecuniary damage (see, Nadrosov v. Russia, no. 9297/02, § § 53-54, 31 July 2008 ), plus any tax that may be chargeable. B. Costs and expenses 150. The applicants also claimed USD 10,000 [6] for the costs and expenses. In this respect they have provided two agreements concluded between the first applicant and Ms Shevchenko, the first one for amount of UAH 10,000 [7] for legal representation in the criminal proceedings against Olga Biliak, and the second one for UAH 7,000 [8] for legal representation in the proceedings on the applicants'criminal complaints (see paragraphs 46-65). 151. The Government invited the Court to disregard the claim for costs incurred during the Convention proceedings, referring to the fact that the applicants were granted legal aid before the Court. The Government further maintained that the applicants'claim was exaggerated and not supported by the relevant documents. 152. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and are reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). The Court considers that these requirements have not been fully met in the instant case. In particular, it finds that the claim for reimbursement of fees for legal representation in the criminal proceedings against Olga Biliak cannot be granted since these proceedings are not related to the violations found by the Court in the present case. However, it is clear that the applicants have already bore some legal expenses, given the steps taken by their lawyers at the domestic level in the criminal proceedings following the applicant's complaints about the death of Olga Biliak. 153. Having regard to all the relevant factors, the Court awards the first applicant EUR 1,900, which, less EUR 850 received in legal aid from the Council of Europe, comes to EUR 1,050 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 154. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the Ukrainian authorities’ failure to protect the applicants’ relative’s right to life. It found in particular that, given the vulnerability of those who were HIV-positive to other serious diseases, the applicants’ relative, refused access to a specialist hospital or the prison’s medical wing, had been provided with a striking lack of medical attention to her health problems. Indeed, although she had been suffering from numerous serious diseases, her treatment had been very basic. Furthermore, the prison management’s application for her urgent release had only been accepted after seven days and the decision to release her had then been processed with a four-day delay, during which time she had already died. Lastly, the Ukrainian Government had not contested the accuracy of a report which had concluded that inadequate medical assistance during the applicants’ relative’s detention had indirectly caused her death; nor had the Government produced any other medical evidence to refute that conclusion. The Court also concluded that Ukraine had failed to conduct an effective and independent investigation into the death, in further violation of Article 2 of the Convention.