Case notes

Lack of access to adequate medical treatment for prisoners can be considered cruel, inhuman or degrading treatment or torture

Lack of access to adequate medical treatment for prisoners can be considered cruel, inhuman or degrading treatment or torture

14 March 2013

Salakhov and Islyamova v Ukraine [2013] ECHR, Application No. 28005/08


The European Court of Human Rights has reaffirmed the principle of international human rights law that prisoners should not be subjected to hardship or constraint other than that which necessarily results from their deprivation of liberty. Prisoners must be treated with humanity and dignity, and their detention should not prevent them from accessing health care in conditions comparable to those enjoyed by patients in the outside community.


The two applicants, Mr Salakhov and his mother Ms Islyamova, complained that Ukraine had violated the right to life and the prohibition of torture and cruel, inhuman and degrading treatment by refusing Mr Salakhov prompt and adequate medical treatment, which had jeopardised his life and lead to his death.

Mr Salakhov was found to be HIV positive in September 2005. In November 2007 he was arrested on suspicion of having robbed an acquaintance of a mobile phone. He was then put into pre-trial detention. From March 2008 onwards Mr Salakhov’s health began deteriorating, and the detainee complained to prison authorities of suffering from a constant fever, weight loss and other symptoms. The detention centre downplayed or ignored his complaints. He was finally taken to hospital twice in June, but returned to the detention centre both times.

The applicants then made a special request to the European Court of Human Rights, which ordered the Ukrainian government to hospitalise and urgently treat Mr Salakhov, given the serious deterioration of his health and the alleged lack of adequate medical treatment. The Ukrainian courts first refused to comply with the order, but then had Mr Salakhov transferred to hospital three days later.

In July 2008, Mr Salakhov, still in a critical state in hospital, was found guilty of fraud and sentenced to a fine, although the judge refused to lift the detention measures until the decision was final. Mr Salakhov was handcuffed to his hospital bed under the surveillance of two guards throughout his hospitalisation. The decision was finalised on 18 July 2008 and Mr Salakhov was released from custody. He died two weeks later.


The Court reiterated that the prohibition of torture and cruel, inhuman and degrading treatment imposes an obligation on the State to ensure that the health and well-being of a prisoner are adequately secured, by providing him with the required medical assistance. In addition to its previous decisions, to interpret the scope of the right the Court relied on the guidelines of the World Health Organisation on antiretroviral therapy for HIV infection in adults and adolescents and the third general report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which states that

 “a prison health care service should be able to provide medical treatment […] in conditions comparable to those enjoyed by patients in the outside community” and that “[w]henever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health”.

The Court found that both the detention centre and the hospital failed to provide adequate medical care to the deceased and therefore the Ukraine had violated the European Convention of Human Rights in both these instances.

The Court furthermore found that the continued handcuffing of Mr Salakhov during his hospitalisation, despite his critical state of health and the fact that he had never behaved violently, also constituted a violation of the prohibition of cruel, inhuman and degrading treatment.

With regards to the right to life, the Court restates its case law that the positive obligation of States arises when it has been established that

“the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.

The Court finds that there was also a violation to the right to life in this case.


The Strasbourg decision echoes rights established not only in the Victorian Corrections Act 1986, section 47, but also in the Victorian Charter of Human Rights and Responsibilities, which ensures the right to humane treatment in detention (section 22). Section 47(1)(f) of the Corrections Act states that every prisoner has “the right to have access to reasonable medical care and treatment necessary for the preservation of health”.

In the landmark Victorian Supreme Court case of Castles v Secretary to the Department of Justice (9 July 2010) Emerton J applied the international principles stated in the recent European decision and other international caselaw to interpret the rights set out in the Charter and the Corrections Act to allow Ms Castles, a prisoner in a minimum security facility in Victoria, to access IVF treatment. The decision stated that prisoners should not be simply held in a “holding pattern” with regard to their health until the end of their sentence, and in this particular case, Ms Castles had started IVF treatment before her sentencing, had continuously demonstrated her commitment to accessing the treatment, and would not be able to wait until her prison sentence was finished to continue the treatment due to her age.

Importantly, Emerton J, similarly to the European decision, stated that the Charter right to humane treatment in detention entailed the right to a high standard of health and that prison authorities must treat prisoners with dignity and with due consideration for their particular human needs.

Prisoners must not be treated as second class citizens but should be treated with dignity and with respect to their humanity, even – or rather especially – when they are suffering from a life-threatening and stigmatising disease such as HIV/Aids.

The European Court decision is available here.

A comprehensive case note of Castles v Secretary to the Department of Justice is available on the HRLC website here.

Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.