Barilo v. Ukraine

The Applicant Barilo, long-afflicted by diabetes mellitus and other chronic illnesses was detained by the Government of Ukraine. She alleged that she was deprived of her liberty in contravention of the European Convention on Human Rights, particularly Articles 3, 5, and 13.

In June 2006, Barilo was arrested on charges instituted three days earlier by the Saky Prosecutor’s Office for crimes she allegedly committed between June 2004 and July 2005. Once in custody, physicians examined Barilo to assess whether her condition was compatible with the detention requirements. At that time, an endocrinologist diagnosed her with a severe form of diabetes; administered one insulin injection; and issued out-patient treatment instructions, including a prescribed diet and four insulin injections per day.

Within two hours of leaving the examining physicians, Barilo needed a second insulin injection. Once at the detention facility, the applicant was not provided a bed or a table, causing her to sleep and eat on her mattress; access to adequate natural or artificial light; sufficient personal space within her cell; the opportunity to go on walks; the opportunity to shower; meals in accordance with her medically prescribed diet. Furthermore, evidence produced by the Government showed that (1) between February 6 to February 11, the applicant received fewer than the required number of insulin injections; and (2) from February 12 to February 16, the applicant administered the injections herself because the paramedic was on leave and the ambulance refused to go to the detention center.

On February 9, Barilo appeared before a judge and he extended Barilo’s detention to ten days to allow time to collect additional information necessary for the court to make a decision as to whether she posed a flight-risk. On February 16, 2016, the Saky Prosecutor’s Office authorized Barilo’s release, noting that her “mild” disability required treatment the detention center was unable to provide. Upon her release, the applicant was hospitalized and treated for severe diabetes mellitus and suspected diabetic precoma.

The Court addressed two separate, but related issues alleged by the applicant to violate Article 3 of the Convention’s prohibitions against torture, inhuman, or degrading treatment or punishment.

First, the Court held that the applicant did not receive adequate medical assistance while in detention, in contravention of Article 3. To define adequate medical assistance, the Court relied on prior case law establishing the Government’s duty to ensure that detainees suffering from serious illnesses receive “special care”, characterized by regular and systematic supervision and “a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than treating them on a symptomatic basis.”

The Court found facts sufficient to establish the severity of the applicant’s illness that might require “special care”. First, the Court noted that the applicant had long suffered from severe diabetes. Although her pre-detention physician’s examination determined that she did need to be hospitalized, the Court also noted that she required medical treatment for her illness only two hours after she arrived at the detention center. The Court questioned whether the detention center followed the examining physician’s instructions; and found no reliable evidence to substantiate its position that the medical assistance received caused the state of her to be hospitalized on the day of her release.

Second, the Court held that the material conditions of the applicant’s detention violated Article 3 of the Convention, which it interprets as prohibiting “distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that [does not adequately] secure the detainee’s health and well-being.” Relatedly, the Court noted that the Government bears the burden of proof where it alone is in possession of relevant evidence.

The Court found that the applicant’s personal space for the majority of the time she was in her cell fell below the minimum standard recommended by the European committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Court also found that the Government failed to produce evidence capable of negating the applicant’s claims during the period is question, namely the inadequacy of lighting, impropriety of the food, lack of bed linen, absence of a bed and impossibility to take a shower; and thus, it ruled against the Government.

The Court held that the applicant was deprived of her liberty in violation of Article 5. The Court reasoned that the aim of Article 5 is to ensure that detention is not arbitrary; and, thus, that the rationale for extending pre-trial detention must be compelling. In light of (1) the Government’s inability to prove a lack of ample time or resources to collect all the necessary information for the lower court to rule on preventative detention; and (2) the Prosecutor’s ultimate decision to release the applicant because of her condition, the detention was arbitrary.

The Court held that the Government’s failure to provide an effective remedy for the aforementioned violations breached Article 13. Although the Government pointed to the availability of the local prosecutor and court, because the Court found violations that the local authorities did not adequately address, they were not effective remedies.

“The Court reiterates that the State must ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance.” (Para 66)

“Where the authorities decided to place and maintain in detention a person who is seriously ill, the should demonstrate special care in guaranteeing such conditions as corresponding to his special needs resulting from his disability.” (Para 67)

 “The mere fact that a detained was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate …The authorities must also ensure that, where required by the nature of a medical condition, supervision is regular and systematic and that there is a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than treating them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to actually be followed through.” (Para 68)

“The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with this provision, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.” (Para78)