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FIFTH
SECTION
CASE OF
ISAYEV v. UKRAINE
(Application
no. 28827/02)
JUDGMENT
STRASBOURG
28
May 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Isayev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28827/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Yuriy Vladimirovich
Isayev (“the applicant”), on 10 July 2001.
- The
applicant was represented by Mrs A. Suleymanova, a lawyer
practising in Ukraine. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- By
a decision of 13 February 2007 the Court declared the
application partly inadmissible and decided to communicate the
complaints concerning Articles 3 (the alleged ill-treatment of the
applicant in November 1997 and the absence of appropriate medical
treatment), 5 § 3 (the
length of the detention on remand) and 6 § 1 (the length of the
proceedings) of the Convention to the Government. Applying Article
29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1972 and lives in the city of
Kharkiv, Ukraine.
A. Criminal proceedings against the applicant
- On
18 October 1995 the applicant was arrested and detained on remand. He
was subsequently charged with illegal possession of arms.
- On
21 October 1995 the applicant was charged with theft.
- On
30 May 1997 the Leninskyy District Court separated the two sets of
criminal proceedings against the applicant and remitted the case of
theft for further investigation.
- On 2 June 1997 the court sentenced the applicant to
three and a half years' imprisonment for illegal possession of arms.
On 6 August 1997 the Balakleyskyy District Court amnestied the
applicant and he was subsequently released. According to the
applicant, the release was subject to an undertaking not to abscond.
- On 6 November 1997 the applicant was arrested again,
apparently in the context of the criminal proceedings in the case of
theft mentioned above, and charged with embezzlement; subsequently
this charge was reclassified to theft and robbery. The gravity of the
crimes with which he was charged and the danger of his absconding
were mentioned in the investigator's arrest order as reasons for the
applicant's detention on remand.
- Alongside
the applicant, other persons were charged within these proceedings
(by the end of the trial there were fourteen persons), although on
different dates and with different crimes.
- On
25 December 1997 the Prosecutor of the Kharkiv Region extended the
applicant's pre-trial detention until 14 April 1998. In doing so he
referred to the gravity of the crimes with which the accused were
charged and the danger of their absconding.
- Between 1998 and 2001 the applicant's criminal case
was transferred several times for examination to the Kharkiv Regional
Court. However, the latter remitted it for additional investigation.
The last time this happened was on 8 February 2001. In doing so
the court, inter alia, ordered the applicant's further
detention on remand; it did not specify any reasons for this
detention. On 15 May 2001 the Supreme Court of Ukraine quashed this
decision and remitted the case back to the court.
- On
6 September 2001 the Kharkiv Regional Court of Appeal (formerly
Kharkiv Regional Court) remitted the case to the Kharkivskyy District
Court of the Kharkiv Region for examination because of the changes
introduced in the Criminal Procedure Code on 12 July 2001, which
provided that such cases had to be considered by the district courts.
- The applicant and his lawyer asked the court to
release the applicant on several occasions referring, inter alia,
to the applicant's state of health, but to no avail. In particular,
on 27 March, 8 July and 18 August 2003 the Kharkivskyy District Court
refused the applicant's and his lawyer's requests to replace the
applicant's detention on remand with an undertaking not to abscond.
On the latter date the court rejected the applicant's reference to
his poor state of health, arguing that he was taking an active part
in the criminal proceedings against him and, therefore, his argument
of poor health was ill-founded. Apparently, the remainder of the
applicant's and his lawyer's requests for release were either not
taken into account by the court or the copies of relevant court
decisions were not provided to the Court.
The
applicant was finally released on 1 October 2003 for health reasons,
on an undertaking not to abscond.
- The other accused and their lawyers also made several
requests to the court for their detention to be replaced with an
undertaking not to abscond.
- In the course of the criminal proceedings the court
also considered numerous motions filed by the accused and their
lawyers, among which there were motions to order forensic
examinations (in total, more than twenty different forensic
examinations, for example, medical, fingerprints, and so on, were
held at the pre-trial and trial stages), to extend the time-limit for
familiarisation with the case-file, to replace one lawyer with
another (at least three lawyers were replaced at the applicant's
request). The accused also challenged the judge who was dealing with
their case on a number of occasions.
- By
the end of the trial, sixteen persons had lodged civil claims against
the accused.
- On
29 July 2004 the Kharkivskyy District Court sentenced the applicant
to five years, eleven months and 25 days' imprisonment for numerous
robberies and burglaries. The court also found all the other accused
guilty and imposed on them various sentences. The court further
examined the civil claims and allowed them in part.
- The
applicant and prosecutor appealed against this judgment.
- On
20 December 2006 the Kharkiv Regional Court of Appeal upheld the
impugned judgment in regard to the applicant and changed it in regard
to other accused.
- The applicant appealed in cassation and, according to
him, on 12 March 2007 the Supreme Court of Ukraine rejected his
appeal.
B. Proceedings concerning ill-treatment by the police
- According
to the applicant, in November 1997 he was beaten by the police. By a
letter of 27 January 1998 the prosecutor informed the applicant that
on 3 December 1997 a medical expert had established that he had minor
bodily injuries. The parties did not provide the Court with a copy of
this medical report.
- On
10 April 1998, apparently having examined the applicant's complaints,
the prosecutor found no prima facie case of ill-treatment.
Accordingly, he refused to institute criminal proceedings against the
policemen concerned.
- The
applicant further raised his complaints of ill-treatment before the
Kharkivskyy District Court during the trial against him. However, the
court dismissed these complaints as ill-founded, referring to the
prosecutor's decision.
C. State of the applicant's health and the applicant's
medical treatment
- According
to the applicant, between October and November 1995 he was beaten by
the police and that caused him, inter alia, a spinal trauma.
- The
Government produced a collection of documents which appear to be
extracts from the applicant's medical records, a substantial part of
which is illegible. The legible pages list the applicant's diagnoses
but contain no information about the nature of treatment administered
to the applicant in the Pre-Trial
Detention Centre No. 27 (слідчий
ізолятор № 27
- hereinafter “the SIZO No. 27”), where he was detained
at the material time. They can be summarised as
follows.
- In
the period between 24 December 1996 and 10 January 1997 a medical
expert report, prepared in the course of the applicant's detention,
established that the applicant was suffering from a peroneal nerve
neuropathy and partial paralysis of the right foot (нейропатія
малогомілкового
нерва з парезом
правої стопи).
The experts further concluded that these disorders could have been
caused by an osteochondrosis, and that the applicant could be treated
in the pre-trial detention
centre, where he was detained at the time. He warned
that “in the absence of appropriate medical treatment the
disease [would] progress”.
- Following his arrest in November 1997 (see paragraph 9
above), the applicant was examined by the doctors of the SIZO
No. 27, where the applicant was placed. He was also examined by a
psychoneurologist on 10 December 1997. The doctors' report does
not contain any information about his alleged neurological problems.
- On 14 July 1998 the head of the medical department of
the SIZO No. 27 reported to the prosecutor that, having examined
the applicant on the same date, it had been concluded that his state
of health was satisfactory and he did not need medical treatment. He
further stated that the applicant could be detained in the SIZO
No. 27.
- On 12 October 1999 the applicant was examined by a
neurologist and diagnosed with partial paralysis of the right
peroneal nerve (парез
правого малогомілкового
нерва). In this regard the
doctor ordered an X ray examination, which revealed sacral
assimilation (сакралізація
п'ятого поперекового
хребця).
- Later,
on 6 November 1999, the head of the medical department of the SIZO
No. 27 reported that the applicant had applied for medical aid
on account, inter alia, of partial paralysis of the right
peroneal nerve and left peroneal nerve disorder syndrome (синдром
порушення
лівого малогомілкового
нерва). He had received
out-patient treatment. Finally, the head of the department stated
that the applicant needed additional examinations.
- On 31 May 2000 the applicant was examined by a
neurologist and diagnosed with partial paralysis of both feet.
- Following the applicant's medical check-up on 17
October 2000, it was reported, inter alia, that his
above-mentioned neurological problems were a result of the spinal
trauma suffered in 1995. It was further stated that the applicant
needed routine surgical treatment. No further information as to
whether the applicant underwent this treatment is available.
- On an unknown date in October 2001 and on 25 January
2002 the doctors came to the conclusion that the applicant, given his
state of health, could be detained in the SIZO
No. 27. Furthermore, on 15 March 2003 they concluded that the
applicant could be placed in a disciplinary cell (карцер).
- On 19 December 2002 the doctors of the SIZO
No. 27, following the applicant's complaints of pain and weakness in
the right hand and foot, examined the applicant and concluded that he
was suffering from partial paralysis of the right hand and foot. They
noted that the disease was progressing and that there was a suspicion
of syringomyelia (сирингомієлія).
In their view, to make a diagnosis and to plan a therapeutic approach
the applicant needed to undergo additional medical examinations and
treatment at a specialised hospital.
- According
to the Government, on 10 June 2003, following the applicant's
complaints of, inter alia, pain in his right hand, he was
examined by a neurologist who reaffirmed his above-mentioned
neurological problems. He noted, among other matters, the progressive
nature of the disease and the suspected syringomyelia.
- On 11 June 2003 the doctors of the SIZO
No. 27, having examined the applicant, again diagnosed him as
suffering from the progressive neurological problems mentioned in the
preceding paragraph. They further noted that in the SIZO
No. 27 there was no neurologist, no neurosurgeon, no appropriate
medication (in particular, painkillers) and no possibility to provide
specialised treatment for the applicant.
- On 8 July 2003 the Kharkivskyy District Court of
Kharkiv Region, rejecting one of the applicant's lawyer's requests to
release the applicant, held that the applicant's detention was lawful
and that the court was not competent to consider the issues of
detainees' medical treatment. However, the court noted that it “took
into account” the information mentioned in the preceding
paragraph.
- The
applicant again requested his release, referring to his aggravated
state of health and lack of necessary medicine; these in his view
made it difficult for him to participate effectively in the court
proceedings. On 18 August 2003 the Kharkivskyy District Court
noted that the SIZO doctors had not requested it to release the
applicant in order to participate in the proceedings, and held that
the applicant himself and with the assistance of his counsel actively
participated in the court proceedings. Accordingly, it rejected the
applicant's request.
- On
1 October 2003 the Kharkivskyy District Court noted, referring to the
medical data, that “[the applicant] was suffering from the
after-effects of a spinal injury and a fracture of the right foot,
median and radial nerve neuritis [неврит
серединного
та радіяльного
нерва] and partial paralysis
of the right hand” and released him.
- The next day the applicant applied to a local hospital
for medical assistance and was sent to City Hospital No. 7 where he
underwent specialised diagnostic procedures and treatment (including
as an in-patient).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Constitution of Ukraine and the Pre-Trial
Detention Act can be found in the judgment of 12 October 2006 in the
case of Dvoynykh v. Ukraine (no. 72277/01, §§ 28-31,
33-35 and 37).
- The
relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by
the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment can be found in the judgment of
26 October 2006 in the case of Khudobin v. Russia (no.
59696/00, § 56, ECHR 2006 XII (extracts)).
- The relevant extracts from Committee of Ministers
Recommendation No. R (87) 3 on European Prison Rules (adopted by the
Committee of Ministers on 12 February 1987 at the 404th meeting of
the Ministers' Deputies) can be found in the judgment of 6 September
2007 in the case of Kucheruk v. Ukraine (no. 2570/04, § 102,
ECHR 2007 ...).
THE LAW
I. SCOPE OF THE CASE
- Following
the Court's admissibility decision, the applicant made further
submissions, in which he reiterated the entirety of his original
complaints. After his conviction became final, the applicant
complained again about its lawfulness.
- In
its partial decision on admissibility of 13 February 2007, the
Court adjourned its examination of the applicant's complaints
concerning Articles 3 (the alleged ill-treatment of the applicant in
November 1997 and the absence of appropriate medical treatment),
5 § 3
(the length of the detention on remand) and 6 § 1 (the length of
the proceedings) of the Convention. The remainder of the complaints
was declared inadmissible. To the extent that the applicant now
repeats those complaints which have already been declared
inadmissible, the complaints are “substantially the same”
as those already declared inadmissible, and they must now be rejected
pursuant to Article 35 §§ 2 (b) and 4 of the Convention.
The new complaint, about the lawfulness of the applicant's
conviction, will be dealt in a separate application, no. 22594/09.
The scope of the case now before the Court is limited to those
complaints which were adjourned on 13 February 2007.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicant complained that he had been subjected to
ill-treatment by the police in November 1997. He also complained
about the lack of medical assistance in the SIZO No. 27. He invoked
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
1. Alleged ill-treatment
- The
Government submitted that the applicant had failed to exhaust
domestic remedies as he had not challenged the prosecutor's decision
of 10 April 1998 not to institute criminal proceedings in
respect of his alleged ill-treatment either to a superior prosecutor
or before the competent court.
- The
applicant disagreed, asserting that he had appealed against this
decision to both authorities but to no avail. He did not, however,
provide any document in support of this assertion.
- The
Court notes that in the present case the
applicant failed to avail himself of the court procedure
specifically designed for challenging the outcome of the
investigation into complaints about ill-treatment and to attribute
responsibility for alleged beatings or afford redress for an alleged
breach of Article 3 of the Convention. Instead he raised these
complaints in the course of the criminal proceedings against him
which were designed to find him innocent or guilty of the criminal
charges levelled against him (Belevitskiy v.
Russia, no. 72967/01, §§ 61 and 63, 1 March
2007; Yakovenko v. Ukraine,
no. 15825/06, § 72,
25 October 2007).
By failing to establish that he challenged the prosecutor's decision
of 10 April 1998, the applicant therefore failed to pursue an
effective avenue of appeal which was open to him.
- The
Court finds, therefore, that the applicant's complaints concerning
the alleged ill-treatment by the police in November 1997 must be
rejected for non-exhaustion of domestic remedies pursuant to
Article 35 § 1 of the Convention.
2. Alleged absence of appropriate medical treatment
- The
Court finds that the applicant's complaint under Article 3 of
the Convention about the lack of appropriate medical treatment
is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government maintained that the applicant was provided with adequate
medical care and received appropriate treatment routinely or on
request. Referring to the medical documentation they produced in
support of this claim, they were of the opinion that there was no
violation of Article 3 of the Convention in the applicant's case.
- The
applicant disagreed. Referring to medical report of 11 June 2003 (see
paragraph 37 above), he pleaded that his detention in the absence of
appropriate medical treatment – given the progressive nature of
his disease, the pain in his back and limbs, and the lack of
painkillers – caused him suffering contrary to Article 3. In
his view, while considering his requests for release the district
court did not take into account the irreversible processes in his
body and protracted his detention up to 1 October 2003.
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy, judgment of 6
April 2000, Reports of Judgments and Decisions 2000-IV,
§ 119).
- The Court further points out that, according to its
case-law, ill-treatment must attain a minimum level of severity if it
is to fall within the scope of Article 3. The assessment of this
minimum is relative; it depends on all the circumstances of the case,
such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, §
162). Although the purpose of such treatment is a factor to be taken
into account, in particular the question of whether it was intended
to humiliate or debase the victim, the absence of any such purpose
does not inevitably lead to a finding that there has been no
violation of Article 3 (Peers v. Greece, no. 28524/95,
§ 74, ECHR 2001-III).
- In
exceptional cases, where the state of a detainee's health is
absolutely incompatible with detention, Article 3 may require the
release of such a person under certain conditions (see Papon v.
France (no. 1) (dec.), no. 64666/01, CEDH 2001-VI; Priebke
v. Italy (dec.), no. 48799/99, 5 April 2001).
There are three particular elements to be considered in relation to
the compatibility of the applicant's health with his stay in
detention: (a) the medical condition of the prisoner, (b) the
adequacy of the medical assistance and care provided in detention;
and (c) the advisability of maintaining the detention measure in view
of the applicant's state of health (see Mouisel v. France,
no. 67263/01, §§ 40-42, ECHR 2002-IX).
- However,
Article 3 cannot be construed as laying down a general obligation to
release detainees on health grounds. It rather imposes an obligation
on the State to protect the physical well-being of persons deprived
of their liberty. The Court accepts that the medical assistance
available in prison hospitals may not always be of the same standard
as that in the best medical institutions for the general public.
Nevertheless, 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 (see Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; see
also Hurtado v. Switzerland, judgment of 28 January 1994,
Series A no. 280-A, opinion of the Commission, pp. 15-16,
§ 79; and Kalashnikov v. Russia, no. 47095/99,
§§ 95 and 100, ECHR 2002-VI). In Farbtuhs v. Latvia
(no. 4672/02, § 56, 2 December 2004) the Court
noted that if the authorities decided to place and maintain a
seriously ill person in detention, they should demonstrate special
care in guaranteeing such conditions of detention that correspond to
his special needs resulting from his disability. The
authorities must also ensure that, where necessitated by the
nature of a medical condition, supervision is regular, systematic and
involving a comprehensive therapeutic strategy aimed at curing the
detainee's diseases or preventing their aggravation, rather than
addressing them on a symptomatic basis (see Hummatov v.
Azerbaijan, nos. 9852/03 and 13413/04, §§ 109
and 114, 29 November 2007; Sarban v. Moldova,
no. 3456/05, § 79, 4 October 2005; and Popov
v. Russia, no. 26853/04, § 211, 13 July
2006).
59 The Court applies the standard of proof “beyond reasonable
doubt” in its assessment of evidence at its disposal (the
Ireland v. the United Kingdom judgment, cited above, p. 65,
§ 161). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in a large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. In such cases it is up to
the authorities to provide a satisfactory and convincing explanation
(see Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII). In the absence of such explanation the Court can draw
inferences which may be unfavourable for the respondent Government
(see Orhan v. Turkey, no. 25656/94, § 274, 18 June
2002).
60. Turning to the facts of the present case, the Court would
emphasise the limited nature (in particular, lack of details on
treatment proposed by relevant doctors) and poor quality (in
particular, illegible copies) of the medical documentation provided
by the Government. The first question for the Court is whether it is
established that the applicant's medical conditions were serious
enough to need treatment, and whether his alleged suffering attained
the minimum level of severity to make Article 3 of the Convention
applicable. The Court observes that the applicant's neurological
problems were revealed in January 1997 at the latest. Subsequently,
in the period to 19 December 2002, the medical diagnoses, so far as
they are legible, alternated between those confirming the applicant's
neurological problems (paragraphs 30-33 above), diagnoses where
no neurological problem was established (paragraph 28 above),
and those stating that the applicant's state of health was
satisfactory and that he did not need any specific medical treatment
(paragraphs 29 and 34 above). In these circumstances, it is
difficult for the Court to come to any factual conclusions as to the
applicant's state of health and his alleged suffering over the whole
of the period at issue.
- However,
as from 19 December 2002 it was plain, and was acknowledged by the
SIZO authorities themselves (see paragraph 35 above), that the
applicant's right hand and foot were partly paralysed, that there was
a suspicion of syringomyelia, and that the needed specialist
examinations and treatment were not available in the SIZO.
Although it is not for the Court to speculate, from the medical point
of view, on whether the applicant's ailment per se caused him
suffering going beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment (see Kudła v. Poland, cited above, § 94),
the Court is of the view that the minimal level of severity was
attained in the instant case. In particular, the knowledge that he
had been diagnosed by the prison authorities as having ailments
calling for specialist treatment but that such treatment was not
available must have caused the applicant a degree of anguish over and
above the mere discomfort and pain of his complaints. Accordingly,
Article 3, in the Court's view, applies to the present case.
- In the circumstances of the case, the Court considers
that the applicant's retention in the SIZO no. 27 from 19 December
2002 to 1 October 2003 could only be compatible with Article 3
of the Convention if the Government provided some form of evidence to
establish that the applicant did in fact receive adequate treatment.
However, the Government have done no more than state generally that
the applicant received “relevant treatment”, without
giving any details of the kind of treatment administered, when it was
given and by whom (see, mutatis mutandis, Ostrovar
v. Moldova, no. 35207/03, § 86, 13 September
2005). Accordingly, the Court considers that the
Government have not provided a plausible account of whether they have
complied with their obligation to provide the applicant with adequate
medical treatment while in detention (see, mutatis
mutandis, Khudobin v. Russia, cited above, § 88).
- When,
on 1 October 2003, the Kharkivskyy District Court finally took a
stance on the applicant's state of health and released him, he had
been in unsuitable detention since at least 19 December 2002, that
is, for over ten months. On his release, he was immediately admitted
to a specialised hospital and underwent medical treatment (see
paragraph 41 above). Hence, the Court takes the view that the
applicant's detention in the SIZO
No. 27 from 19 December 2002 onwards subjected him to
distress or hardship of an intensity exceeding the unavoidable level
of suffering inherent in detention (see, mutatis mutandis,
Kudła v. Poland, cited above, §§ 94 et
seq.).
- In
these circumstances, the Court considers that there has been a
violation of Article 3 of the Convention as regards the lack of
adequate medical treatment and assistance provided to the applicant
while he was detained, amounting to degrading treatment.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant further complained that the overall length of his detention
had not been “justified” or “reasonable”. He
referred to Article 5 § 3 of the Convention,
which provides in so far as relevant:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
A. Admissibility
- The Court notes that the applicant's complaint about
the length of his pre-trial 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
- The Government submitted that the applicant's
continued detention had been justified, given the gravity of the
crimes with which he was charged and the danger of his absconding.
They went on to maintain that there was also a danger of pressure on
witnesses, repetition of crimes and destruction of evidence, should
the applicant have been released.
- The applicant disagreed, asserting that he had not
been detained from August to November 1997 (see paragraph 8
above) and had not availed himself of the opportunity to abscond from
the investigation pending against him.
- The Court observes that in the present case the period
to be taken into consideration for the purposes of Article 5 § 3
of the Convention started on 6 November 1997, when the applicant was
arrested, and ended on 1 October 2003, when he was released upon
an undertaking not to abscond (see paragraphs 9 and 14,
respectively). Therefore the period lasted five years, ten months and
24 days.
- The Court reiterates that the question of whether or
not a period of detention is reasonable cannot be assessed in the
abstract. Whether it is reasonable for an accused to remain in
detention must be assessed in each case according to its special
features. Continued detention can be justified in a given case only
if there are specific indications of a genuine requirement of public
interest which, notwithstanding the presumption of innocence,
outweighs the rule of respect for individual liberty laid down in
Article 5 of the Convention (see, among other authorities, the Kudła
v. Poland judgment, cited above, §§ 110 et seq.).
It falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned demand of public interest justifying a departure from
the rule in Article 5 and must set them out in their decisions on the
applications for release. It is essentially on the basis of the
reasons given in these decisions and of the well-documented facts
stated by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see also the Muller v. France judgment of 17 March 1997,
Reports of Judgments and Decisions 1997-II, p. 388,
§ 35).
- The
Court notes that the initial detention order of 6 November 1997 was
based on the gravity of charges against the applicant and the alleged
risk of absconding.
- In
this respect the Court reiterates that, although the persistence of a
reasonable suspicion is a condition sine qua non for the
initial detention, after a certain lapse of time it no longer
suffices (see, as a classic authority, Labita v. Italy [GC],
no. 26772/95, § 153, ECHR 2000-IV). The Court accepts that a
reasonable suspicion against the applicant could have warranted the
initial detention. It points out, however, that the gravity of the
charge cannot by itself serve to justify long periods of detention
pending trial. Nor can it be used to anticipate a custodial sentence
(see Rokhlina v. Russia, no. 54071/00, § 66,
7 April 2005; Panchenko v. Russia, no. 45100/98,
§ 102, 8 February 2005). The Court notes in this
respect that, after 6 November 1997, the applicant's detention was
extended several times (on 25 December 1997 and 8 February
2001, at least) and lasted almost six years. Moreover, on 15 May
2001, at the latest, the investigation was declared to be completed
and the case was transferred to the trial court. In the Court's view,
in these circumstances the domestic authorities should have adduced
new reasons to justify the applicant's continued detention.
- As to the alleged risk of the applicant's absconding,
the Court observes that neither the Government in their observations,
nor the domestic authorities in their decisions to arrest and detain
the applicant, explained the grounds for this suspicion (for
instance, that the applicant had ever made any specific attempt to
abscond). Their reference to the applicant's previous criminal
convictions may be significant; however, in the context of the
present case this argument is diminished, having regard to the
applicant's compliance with his previous undertaking not to abscond
(see paragraph 8 above).
- As
to the reasons mentioned by the Government in their observations,
namely the danger of pressure on witnesses, repetition of crimes and
destruction of evidence, the Court repeats that it is essentially on
the basis of the reasons given in the domestic courts' decisions and
of the facts stated by the applicant in his appeals that the Court is
called upon to decide whether or not there has been a violation of
Article 5 § 3 (see Jablonski v. Poland, no. 33492/96,
§ 79, 21 December 2000). In the Ilijkov v. Bulgaria case
(no. 33977/96, § 86, 26 July 2001) the Court found:
“Even though facts that could have warranted [the
applicant's] deprivation of liberty may have existed, they were not
mentioned in the courts' decisions ... and it is not the Court's task
to establish such facts and take the place of the national
authorities who ruled on the applicant's detention.”
- The
reasons for the applicant's detention referred to by the Government
were not mentioned in the domestic court decisions produced by the
Government (in fact no reason at all was specified after December
1997 – see paragraphs 12 and 14 above), and the Court does
not find that those reasons transpire from the circumstances of the
case. On the other hand, such factors as the applicant's health
problems called for careful scrutiny of his applications for release
and for their analysis in the judicial decisions. The Court concludes
that the length of the applicant's detention pending investigation
and trial was not justified by “relevant and sufficient”
reasons.
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of proceedings in his case was
excessive. In this respect he relied on Article 6 § 1 of the
Convention which provides in so far as relevant as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.”
A. Admissibility
- The Court notes that the applicant's complaint about
the length of the proceedings 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
1. Period
to be taken into consideration
- The Government maintained that the period to be taken
into consideration began only on 11 September 1997, when
the recognition by Ukraine of the right of individual petition took
effect. Therefore, the applicant's complaints related to the events
prior to that date should be rejected as incompatible ratione
temporis.
- The
Court notes that the proceedings complained of began on 21 October
1995 when the applicant was charged with theft and ended on 12 March
2007. The Court points out that the Convention entered into force in
respect of Ukraine on 11 September 1997, thus the period falling
within the Court's competence ratione temporis lasted nine
years and a half. However, in assessing
the reasonableness of the time that elapsed after 11 September 1997,
account must be taken of the state of proceedings on that date (see,
mutatis mutandis, Milošević v. “the
former Yugoslav Republic of Macedonia”, no. 15056/02,
§ 21, 20 April 2006; Styranowski v. Poland,
no. 28616/95, § 46, ECHR 1998-VIII; Foti and Others
v. Italy, judgment of 10 December 1982, Series A no.
56, p. 18, § 53).
- Reasonableness
of the length of the proceedings
- The
Government submitted that the length of the proceedings in the
applicant's case was reasonable. In particular, they stated that the
applicant's case was complicated on points of fact, given the number
of accused (15 persons), civil claimants (16 persons), witnesses
(according to them, more than 70 persons). This case, in their view,
was also complicated on points of law as it concerned a number of
multi-count crimes committed by a group of persons. In this respect,
they maintained that the domestic authorities had had to carry out
more than 20 different forensic expert examinations. Furthermore the
Government pointed out that delays in the proceedings at issue had
been caused by the accused and their lawyers, who had taken long
periods of time to familiarise themselves with the case-files.
Furthermore, their manifold complaints and requests likewise
contributed to the length of the proceedings. In sum, they took the
stance that the domestic authorities had acted with due diligence and
that the length of the impugned proceedings was reasonable.
- The
applicant disagreed.
- The
Court will assess the reasonableness of the length of the proceedings
in the light of the particular circumstances of the case and having
regard to the criteria laid down in its case law, in particular the
complexity of the case, the conduct of the applicant and the conduct
of the relevant authorities. On the latter point, what is at stake
for the applicant has also to be taken into account (see, among many
other authorities, the Kudła v. Poland judgment, cited
above, § 124).
- The
Court has also stressed on many occasions, in the context of
Article 5 § 3, that persons kept in detention
pending trial are entitled to “special diligence” on the
part of the authorities. Consequently, in cases where a person is
detained pending the determination of a criminal charge against him,
the fact of his detention is itself a factor to be considered in
assessing whether the requirement of a decision on the merits within
a reasonable time has been met (see the Jablonski v. Poland
judgment, cited above, § 102).
- The
Court accedes to the Government's contention that the number of
persons involved in the proceedings increased the complexity of the
case to a certain extent. Likewise it accepts their contention that
the charges in the case might be considered complicated.
- The
Court further agrees that that the conduct of the accused, the
applicant himself, and their lawyers (see paragraphs 14-16
above) might have caused some delays in the proceedings under
consideration. However, this cannot justify the overall length of the
proceedings.
- The
Court takes into account the fact that the period of the criminal
proceedings against the applicant falling within the Court's
competence ratione temporis lasted more than nine years during
which period the applicant had been detained on remand for almost six
years, a state of affairs which required, as already mentioned,
special diligence by the domestic authorities in handling his case.
The Court also takes into account the fact that, prior to the period
under consideration, the proceedings had already been pending for
nearly two years. The Government did not, however, put forward any
plausible argument outweighing the above considerations. In these
circumstances, and assessing all the relevant facts as a whole, the
Court considers that the authorities have failed to respect the
applicant's right to have his case heard within a “reasonable
time”.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not advance any claim under this provision. The Court,
accordingly, makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 3
(adequacy of medical treatment while in detention), 5 § 3
(the length of the detention on remand) and 6 § 1 (the length of
the proceedings) of the Convention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
