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Home arrow newsitems arrow ECHR condemns Ukraine for jailing and ill-treating a Handicapped Russian in Crimea before 2014

ECHR condemns Ukraine for jailing and ill-treating a Handicapped Russian in Crimea before 2014

Written by ACM
Thursday, 19 March 2020

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*Strasbourg/Angelo Marcopolo/-  It's after incidents Between the successive Presidencies of Yushchenko (2005-2010) and Yanukovych (2010-2014), that a Handicapped Russian, WheelChair-bound, faced Criminal Prosecution and Prison Detention, at Crimea, for the comparatively Minor accusation of allegedly having "Threatened" a Policeman, who had vainly Detained his Son at an unrelated Murder Case, and "Punched" a local Official, that he considered responsible for having Cut Electricity to his restaurant, in addition, (Disputes on which, Curiously, Nothing is said by the ECHR's judgement published Today).

A. K. Vagapov, Despite being Aged 55 and Suffering from "the Most Severe Level of Disability" ("Category 1"), with "Paraplegia of his lower Limbs", since "a Gunshot Wound to his Spinal cord", leaving him "WheelChair-bound" during 24 Years, provoking also "a Skin ...Ulcer", Nevertheless, he was "remanded in Custody, Pending Trial", right from the Start of the Investigation, afterwards Condemned into "3 Years ImPrisonment", and later Jailed. He was Released only towards the End of September 2013, after "having Served his sentence in Full", ECHR observed.

"During his Detention", he had to be Treated for "Aggravated" "PyeloNephritis", and underwent "Surgery" for that Ulcer, was "Diagnosed with Aggravated ...Bronchitis", and found with "a Black Burn Wound" and "a Burn Blister" on his Feet, (later "Diagnosed" as "3rd Degree -out of 4- ...Burns") that "Failed to Heal", added to an "Aggravation" of his Skin Ulcer (advanced into a "PuruloNecrotic Stage, with ...Fistulas"), but also to "Urinary InContinence", "Acute Conjunctivitis of both Eyes", "a Purulent Inflammation of ...Cellular Tissues" (with an "Abscess" which should "be Surgically Drained" : something reportedly "Contra-Indicated in the ...Conditions pertaining" in his Detention area), and even "a Broken Rib" (sic !) with "Pain in the Chest area", (etc)...

But the "Request(s)" of his "Lawyer" for "a Panel of Medical Specialists" to Examine the ImPrisoned Handicapped man in order "to determine his State of Health and Medical Needs", and Whether it was "Possible to Meet those Needs", or not, inside his place of Detention, or at least to "Allow a Civilian Doctor to Examine" him, were Both Rejected by the Ukranian Authorities.

Thus, meanwhile, Vagapov "had Refused the Treatment(s) recommended by ...These Doctors", (of the Prison System), Complaining that they had "Understimated" the "Poor Condition of his ...Health", and that he had been "Denied Access to the Doctor of his (Free) Choice".

+ In Addition, that Prison "had Not been Adapted for WheelChair-bound detainees", Obliging him to be "Dependant on other InMates for his Basic Needs", (f.ex.,  "Toilet", "Shower", "Meals", etc), "Deprived of daily Walks", stay "Held in a Cell measuring about 11 sq. m and Shared by 3 Inmates, with No Space for any Movement in a WheelChair", have "Fewer Meetings with his Lawyer..., as ...his CellMates had had to Carry him", also provoking "several Accidents..., such as Burning his Feet with Hot water, and Breaking a Rib (Comp. Supra), etc, while "the Physical Conditions of his Detention had been Poor".

=> Therefore, the Jailed Handicapped man "complained to the ECHR that "the Conditions of his Detention", "with regard to his Physical DisAbility", and that "Medical Treatment" were "InAdequate", and Violated the "Article 3" of the PanEuropean Convention on Human Rights, which Prohibits "Torture or ...InHuman/Degrading Treatment", in any circumstances.

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Russia indicated that "they did Not Wish to exercice their Right to Intervene in the proceedings" (given also the Russian Nationality of the Jailed DisAbled man), as ECHR noted.

As for the Ukranian Government, it Claimed that, "Although" that Jail "had Not been Adapted for WheelChair-Bound Detainees", nevertheless ,"2 people from the Staff (would) have been Alloted to Assist" the DisAbled prisoner.

ECHR "took Note of the (Ukranian) Government's Acknowledgment of the Lack of technical Arrangements" for "the detention of individuals with physical Disabilities", and "reiterate(d) that", as a matter of General Principle, "where the Authorities decide to place and Keep a Disabled person in continued Detention, they should demonstrate Special Care in Guaranteeing such Conditions as Correspond to the Special Needs resulting from his or her Disability".  

On the Controversy whether the Handicapped Prisoner "had been Assisted by ... fellow InMates, or by the (Jail's) Staff" (Comp. Supra), ECHR observed that the Ukranian "Government did Not provide Any Details in that connection", Not even "whether the ...Staff had been Trained or had the Necessary Qualifications"...

Moreover, the Ukranian "Government" did Not Say Anything "on the Incidents which led to ...sustained boiling-water Burns in the course of taking a Shower ..., and having his Rib Broken", as Vagapov had Denounced, (Comp. Supra), ECHR notes, pointing at the incredible Helplesness into which Handicapped People may fall, if they are Obliged to live their EveryDay Life in outlets Deprived of the slightest Facility for Autonomous Movements, (as, f.ex., Metalic Bars, etc)...         

=> "Therefore", the PanEuropean "Court found Plausible... that the ... Injuries" were "a Result of the Failure to Meet" the Handicapped Prisoner's "Basic Needs, in Conditions that would Respect his Human Dignity". "This ...shows that the (alleged) Assistance of the (Jail's) Staff, IF Any, (Comp. Supra), "could Not have ensured (his) ...Autonomy or ...Physical and Moral Integrity".

Indeed, as ECHR had Already noted, at a previous decision on this case, when it had Initially raised relevant Questions to the Ukranian Government, in order to find out its reactions, it's also the f. UN Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment ..., Mr Manfred Nowak", who stressed that "Persons with Disabilities often find themseles in [situations of Powerlessness], for instance When they are Deprived of their Liberty, in Prisons, or Other Places", where "the  particular Disability of an individual may render him or her more Likely to be in a Dependent situation, and make him or her an easier Target of Abuse".                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

+Moreover, ECHR "refer(ed) to the Findings of the CPT (CoE's Anti-Torture Watchdog) in 2013, that Conditions in the Cells" of that Crimea's Jail, in general,"had been as Miserable as some Thirteen Years Previously (i.e. on 2000), when (it) had First Visited that facility...

>>> In Consequence, "and" given "the Cumulative Effects" of such Facts, ECHR Concluded that "the specific Conditions" of the Handicapped Prisoner's "Detention, in view of his Physical Disability, ...in particular, his InAbility to Access the various parts" of that Jail "Independently, including the Canteen and the Sanitation Facilities, and ...the Lack of any Organized Assistance" for "his Mobility ... or his Daily Routine, must have Caused him UnNecessary and Avoidable Mental and Physical Suffering, Diminishing his Human Dignity".                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

"That amounted to Inhuman and Degrading Treatment", in "Violation of Article 3, of the" PanEuropean "Convention" of Human Rights, ECHR Concluded.

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+ The Handicapped man had also Denounced to the ECHR that the Ukranian Court's decision to Condemn him in 3 Years of ImPrisonment was "an Arbitrary and UnNecessary measure", which "had Not been Based on relevant and Sufficient Reasons", and "had Failed to Take into Account (his) ...state of Health; it had Never Examined an Alternative, ... such as a Commitment Not to Leave the Town, or Bail", etc.  

In fact, an Initial "Undertaking Not to Abscond", imposed by a 1st Court, had been "Changed", by a 2nd Court, into "Remand in Custody", under Pretext of the alleged "Seriousness and the Nature of the Criminal Offences in issue", (Comp. Supra)...

But the ECHR found that "Neither the (Ukranian) Government's observations, Nor ... that Court ...had made an Appropriate Assessment of the Facts ... (on) Whether ... (this) was Necessary ..., in particular in view of the applicant's DisAbility". "Neither did (it) ...state Which Risks Justified the ... Detention on remand, (f.ex. the Risk of ...Absconding, Influencing Witnesses, or Hindering Investigation").

This was Contrary to "Article 5§1" of the PanEuropean "Convention" on Human Rights, which stressed that "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", EuroJudges observed.

=> Therefore, ECHR judged that the contested Measure "did Not Afford the applicant the Adequate Protection from Arbitrariness, which is an Essential element of the "Lawfulness" of Detention, within the meaning of Article 5§1 of the Convention", and,  "Accordingly, there has been a Violation of that provision" too.

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>>> In Consequence, it's "Unanimously" that the  Strasbourg's Court held that "there has been a Violation of Article 3 of the (PanEuropean) Convention" on Human Rights, because of Inhuman/Degrading Treatments (Comp. Supra) "on account of the specific Conditions of the applicant’s Detention ... in view of his Physical Disability", and "a Violation of Article 5§1 of the Convention", about Personal Liberty (Comp. Supra), Deciding to "Award" to the Victim "EUR 3.000, (three thousand euros)", "in respect of Non-Pecuniary Damage, Plus any Tax that may be chargeable", due to be Paid by "the Respondent State", i.e., in this case, Ukraine.

 

(../..)

("Draft-News")

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    The recent paradox of freezing EU Talks with front-runner Croatia, while continuing controversial EU - Turkey talks, despite Zagreb's acceptance of Refugees' Human Rights to return, that Ankara refuses fex. in Cyprus, while both have "Good Neighborhood" problems vis a vis Slovenia, or Greece, Cyprus and Armenia respectively, can it be justified by the non-fullfilment of EU criteria, as Slovenia says, or, is it "Double Standards" ?    

The question became unavoidable after statements by Presidents of Slovenia and Croatia, Tuerk and Mesic, respectively, to "EuroFora", exclusively or among Strasbourg's journalists this week at the CoE, on the sidelines of its 2009 Summer University for Political Schools, which topically brought them together as successive key-note speakers.


    Comming only a few Months before EU checks Turkey's compliance to its commitments on Cyprus, etc., scheduled for December 2009, this obviously has a special importance for the coherence of EU Enlargement's principles.

     Suspension of EU Negotiations is a normal consequence in case of a Candidate Country's failure to fullfil EU Conditions, such as "Good Neighborhood relations", stressed at first Slovenian President Danilo Tuerk, current CoE's chair.

    But, regarding EU's Criteria,  there shouldn't be any "Double Standards",  reacted Croatian President Stjepan Mesic, commenting the fact that Turkey's controversial EU negotiations continue, while they were recently "freezed" in the case of Croatia, an "unquestionably European Country", which oficially accepts to respect Refugees Human Rights, contrary to Ankara's notorious refusals or reluctance.                                       

imag0475_400
                                                                                                                                                                                                                                                                                                                                                           - "EU itself has set as a Criterium (for EU Enlargement) the "Good Neighborhood relations",  and their absence justifies the "Suspension" EU Negotiations, (f.ex. with Croatia), because of a Border dispute affecting the territorial integrity of an EU Member Country, stressed Slovenian President, Danilo Tuerk, CoE's Chairman in office (May - November 2009), speaking to Journalists in Strasbourg including "EuroFora".    

Questioned earlier what "consequences on EU's Enlargement policy" can have the "Ban on EU Membership Negotiations", imposed to Croatia, Tuerk replied that "this question comes down to the fulfillement of (EU) Criteria for membership. One has to look at each Candidate Country ., from the point of view whether it fullfils the Criteria that EU has set. One of them are Good Neighborhood Relations, I'd like to remind. And also, there are other factors, such as Justice, Home affairs, Rule of Law, and others".


    - "Now, ..Candidate Countries are at Different Levels of fulfillement of Criteria", he observed.

    - " Croatia is obviously the closest to that. I'm rather optimistic : I think that in the coming Months we'll have an opportunity to look at all these issues constructively and hopefully we'll be able to make progress". "My main concern, at this point, is the situation in Bosnia : We haven't seen enough progres domesticaly. We haven't seen enough during ..political parties within their country.We need a New Energy, a new energetic move towards the Candidature for EU membership. "Other (Western Balkan) Countries (Serbia, Montenegro, FYROM, Albania) have been making soaring Progress, and I think that they should be ready, in a few Years, for the Candidate status".

    - "As far as the Western Balkans are concerned, .. nobody should be left outside" the EU, Slovenian's President concluded, ommitting to mention Turkey's controversial EU bid.

    - "This process may be seen as Slow, but..  Slovenia has also has also been exposed to various "Booms of Slowness" in our accession period. But now we can say that the process was relatively quick, because changes which occur after becoming EU member, are quite large, and they require proper Preparations before the (EU) membership becomes a new factor, an impacting line for a new (EU) member country".
----------------------------

EU "Solidarity" ?
------------------------------   

Slovenian statements made some participants from certain 3rd Countries as FYROM, etc. claim that "the Principle of EU Solidarity" would "produce a.. rising European Union Nationalism (sic !), against Non-EU Countries", as they said, asking unhappy foreign countries to form a "bloc" to exert pressure on the EU...    

But Croatian President Stjepan Mesic dismissed that, supporting "EU Integration", "after the Economy also in Political" issues, as "the achievement" of our times. In EU there is "diversity, but it's United", he stressed, "EU has to be United so that it can become a central factor of Peace" also at the surrounding areas, he replied.

croatian_president_mesic_ 

Speaking later exclusively to "EuroFora", the experienced twice President of Croatia, former President of the International "Non-Aligned" movement, denounced "Double Standards" in the way EU treats recently Croatia compared to Turkey :   

 - "I think that there shouldn't be Double Standards", stressed the Croatian President, in reply to a Question comparing the freeze of EU - Croatia talks, with the continuation of EU - Turkey talks, despite the fact that Croatia is an "unquestionably European country", while Turkey's EU bid is notoriously controversial.


    Mesic was reacting to the observation that, even if he confirmed his "respect of Refugees' Human Rights to return, etc. (See infra), nevertheless, EU talks are suspended with Croatia.. While for oher, controversial candidates, who refuse to respect Refugees' Rights to return, etc., as fex. Turkey does in occupied Cyprus and elsewhere, EU negotiations continue".

    - "I believe that Croatia's accession will confirm that all European Countries who fulfill all of the Conditions and achieve European Standards, have to join the EU. There shouldn't be any Double Standards", went on to add in reply President Mesic.

    In this relation, Croatia's President found "of paramount importance", CoE's "mechanisms enforcing ECHR's judgements"
    
    - "On Refugees and Displaced persons, the process will be completed only after the last person demanding to return will be allowed to do so !", President Mesic Croatia stressed earlier, setting a general standard of obvious importance also for otherr candidates, as f.ex. Turkey, often accused to exclude or heavily restrict Greek Cypriot Displaced persons' return to their Family Homes and ancestral land, provoke difficulties to Turkish-Kurd IDPs return to their home regions at the South-East, etc.

    Some "2.000 People are still reported Missing" in former Yugoslavia, for some Years, (as in Cyprus, modern Europe's oldest case, for 3 Decades. Nagorno-Karabach, Tcecnya in Russia, etc, more recently), and Investigations "will only be completed after establishing the fate of the last one of them", he added.
    
    Speaking earlier on "War Crimes", President Mesic stressed that "Leaders are responsible for (the) Wars (of the Past), not the People", and called against Impunity :  "Individuals have to be held Responsible for Crimes. International Penal Tribunals have to persecute those individuals", perpetrators of War Crimes, he underlined.

    Such statements naturally made Mesic rather popular at ECHR, whose President, French EuroJudge, Professor Jean-Paul Costa, looked particularly smiling when he welcomed him later on Wednesday afternoon, after Slovenian President Daniko Tuerk earlier this week.
           

***

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