FIFTH SECTION
CASE OF
GERASHCHENKO v. UKRAINE
(Application no.
20602/05)
JUDGMENT
STRASBOURG
7 November 2013
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 Gerashchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20602/05) 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 Anatoliy Sergeyevich Gerashchenko
(“the applicant”), on 19 July 2006 (see paragraphs 71-74 below).
The Ukrainian Government (“the Government”) were
represented by their Agent, most recently, Mr Nazar Kulchytskyy.
The applicant alleged, in particular, that he had
been ill-treated by the police, that a search of his home had been unlawful and
arbitrary, that his pre-trial detention had been unlawful and unreasonably long
and that it had lacked the requisite judicial review. He also complained that
he had incriminated himself under duress and without legal assistance.
On 16 December 2009 the complaints regarding the
applicant’s pre-trial detention and the police search at his home were
communicated to the Government. The Court also raised ex officio and
communicated the issue of Ukraine’s compliance with Articles 8 and 34 of the
Convention on account of possible monitoring of the applicant’s correspondence
with the Court.
On 15 March 2012 the President of the Section
decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties
should be invited to submit further written observations on the admissibility
and merits of the applicant’s complaints about his ill-treatment by the police
and the violations of his right to legal assistance and the privilege against
self-incrimination.
Mrs G. Yudkivska, the judge elected in respect of
Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The
President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc
judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and is currently
serving a prison sentence in Odessa following his conviction in criminal
proceedings subsequent and unrelated to those examined in the present case.
A. Background to the case
On 4 December 2003 the applicant was convicted of
possession of illegal drugs and sentenced to three years’ imprisonment.
However, the sentence was suspended and he was put on probation. It was his
third conviction for a drug-related offence.
On 12 May 2004 the Khadzhybeyivskyy Police
Department instituted criminal proceedings against an individual, Mr B., on
suspicion of possession of illegal drugs. In the course of the investigation Mr
B. stated that he had bought the drugs from the applicant.
On 18 May 2004 the investigator applied to the Odessa
Suvorivskyy District Court (hereafter - “the Suvorivskyy Court”), seeking authorisation
of a search of the applicant’s home with a view to verifying Mr B.’s statement.
On 19 May 2004 the Suvorivskyy Court authorised
the police search, having agreed that it was required for the criminal investigation
to progress.
B. Events of 2 July 2004
According to the authorities, on
2 July 2004 an undercover police agent bought 1.9 millilitres of
liquid opium from the applicant, having paid him 30 Ukrainian hryvnias
(UAH) in banknotes previously marked with a luminous substance. The undercover
operation was followed by a search, in the course of which the police seized
the aforementioned banknotes from the applicant and equipment used for drug
production that was found in his house. They also discovered a condom filled
with liquid opium in his pocket.
According to the applicant, on 2 July 2004 while
he was repairing his car in the yard, a group of policemen in plain clothes
broke into his property without identifying themselves or giving reasons for
their intrusion and started beating him. One of the officers grabbed the
applicant’s hair and pulled him into the house, where the beating continued.
The applicant was then handcuffed, after which the police planted the liquid opium
and the pre-marked banknotes on him. The applicant further alleged that the
house search had been conducted in a chaotic and violent manner. While it was
going on, he had been lying on the floor, handcuffed, in one of the rooms. From
time to time, a number of officers had approached him, sworn at him and beaten
him.
The applicant’s parents and wife, as well as his
acquaintance Mr Zh., who happened to be in the house at the time, witnessed
the search.
The applicant gave a written explanation to the
police in which he stated that he was a drug addict and produced liquid opium
for his own use. While admitting that the police had found some liquid opium
and poppy straw, as well as some money in his trousers, the applicant denied
selling drugs.
According to the search report, signed by the
police officers involved, two attesting witnesses and the applicant, the search
lasted from 4 to 7.30 p.m.
The undercover agent reported in writing to his
superior on the same date that he had received the pre-marked banknotes at 5
p.m. and that he had bought the liquid opium from the applicant at about 6 p.m.
After the search was completed, the police arrested
the applicant and took him to Khadzhybeyivskyy Police Station “for further inquiries”.
C. Pre-trial investigation and related facts
On 3 July 2004 the applicant was examined by a neurosurgeon
in the city hospital (see also paragraph 30 below). The medical certificate
issued by the doctor read as follows:
“No fainting, nausea or vomiting reported. No symptoms of
neurological injury. The skull and the cervical vertebrae are without injury. No
acute neurosurgical injuries have been discovered. There is no need for
neurosurgical treatment at the time of examination.”
There is no further information in the case file
as to the circumstances of this examination of the applicant.
On 5 July 2004 a criminal case was initiated
against the applicant on suspicion of the production and distribution of
illegal drugs, and he was arrested as a criminal suspect.
On 7 July 2004 another criminal case was
launched against him on suspicion of possession of drugs for his own
consumption.
On the same date the above criminal cases were
joined.
According to the Government, the applicant was informed
of his right to have a lawyer on several occasions, but waived that right. The
case file does not contain copies of those waivers.
As it transpires from the applicant’s medical
file, a copy of which was provided to the Court by the Government, on 7 July
2004 an ambulance was called for the applicant following his complaints of pain
in the lower right side of the back. The applicant explained that he had been beaten
up during his arrest on 2 July 2004. He was taken to the Odessa Regional Hospital, where he was examined by an urologist and X-rayed. The diagnosis was a
contusion of the right kidney, with no impairment of the kidney’s functions. It
was also recommended that the applicant undergo an ultrasound examination.
On the same date the doctor in charge passed
this information to the Khadzhybeyivskyy Police Department, where the officer
on duty registered it in the logbook.
On 8 July 2004 the investigator applied to the Suvorivskyy Court for the applicant’s remand in custody as a preventive measure pending
trial.
On the same date the Suvorivskyy Court ruled
that further information about the applicant was required in order for it to
decide on whether to order the preventive measure. As a result, it extended his
arrest to ten days (calculated from 5 July 2004). As transpires from the
court’s ruling, the applicant was legally represented at that stage.
On 14 July 2004 formal charges of possession, production
and distribution of illegal drugs were brought against the applicant.
On the same date the applicant was questioned as
an accused. The investigator referred to the applicant’s allegation of having
been beaten up by the police and asked whether he had sought medical
assistance. As per the minutes of the questioning session, the applicant replied
as follows:
“Yes. After I had been taken to Khadzhybeyivskyy Police Station,
they wanted to send me to a detention facility. As I had visible bodily
injuries, I was taken to the [city hospital]. A neurosurgeon examined me and my
head was X-rayed. While in the hospital, I was confused and I forgot to tell
the doctor that I also had pain in the lower part of [my] back. On the
following day I was taken to the detention facility. At the request of the
convoy officers, I did not say anything about my injuries upon my arrival
there. Today I still have blood in [my] urine and my kidneys hurt.”
On 15 July 2004 a lawyer (apparently hired by
the applicant’s relatives) was admitted to represent the applicant in the
proceedings.
On the same date the Suvorivskyy Court remanded
the applicant in custody as a preventive measure pending trial, for an initial
period of two months (until 5 September 2004). The court noted
the seriousness of the charges against the applicant and his extensive criminal
record. It considered that he might flee and/or reoffend if at liberty.
On 3 September 2004 the Suvorivskyy Court
extended the term of the applicant’s pre-trial detention to three months (until
5 October 2004) upon the investigator’s application. It explained
this decision by the necessity to conduct the following measures: the applicant’s
examination with a view to establishing whether he was a drug addict; completion
of the investigation; providing the applicant with the opportunity to study the
case file; and approval of the indictment.
On 9 September 2004 the applicant was examined
by an addiction psychiatrist, who concluded that he was an opium addict in partial
recovery.
On 21 September 2004 the applicant asked the
investigator to allow him to undergo a forensic medical examination, referring
to the contusion of his right kidney which he claimed to have sustained as a
result of his beating by the police on 2 July 2004. He noted that he had repeatedly
asked to be examined.
On 30 September 2004 the investigator rejected
the above request referring to findings made by the Suvorivskyy District
Prosecutor’s Office on an unspecified date, according to which the applicant
had been slandering the police officers with a view to evading criminal
liability.
On 5 October 2004 the applicant was indicted. As
noted in the indictment, the investigator had conducted confrontations between
the applicant and the police officers involved in his arrest, during which no
claims of ill-treatment had been made. The indictment also referred to statements
made by the applicant’s acquaintance, Mr Zh., who had been at the applicant’s home
at the time of the search (see paragraph 14 above). According to Mr Zh., the
police officers’ behaviour on 2 July 2004 had been proper and he had not
witnessed any violence towards the applicant or any of his family members.
D. Trial
On 28 October 2004 the Suvorivskyy Court held a preparatory hearing, during which it decided to extend the
applicant’s detention as a preventive measure pending the pronouncement of the
verdict.
By a judgment of 14 March 2005, the Suvorivskyy
Court found the applicant guilty of the illegal possession, production and
distribution of drugs and sentenced him to five years and two months’
imprisonment (which included the unserved part of the sentence imposed pursuant
to his conviction on 4 December 2003 - see paragraph 8 above). It also ordered the
confiscation of all his personal property. The court based its findings mainly
on the evidence obtained through the undercover operation and the searches of
the applicant’s house and person carried out on 2 July 2004. It heard the police
officers involved, the attesting witnesses, and three of the applicant’s
neighbours. During the trial, Mr Zh. withdrew his statements given in the
course of the pre-trial investigation (see paragraphs 14 and 37 above), claiming
that they had been extracted from him under duress and submitting that he was
not aware of any drug production or distribution by the applicant. He also
maintained that he had witnessed the applicant being beaten by the police on
2 July 2004. The court dismissed this submission as untrue. It also
considered the statement of the applicant’s father that he had seen a police officer
planting drugs on the applicant to be untrue.
On the same date the Suvorivskyy Court issued a
separate ruling by which it held that the monitoring of the applicant’s conduct
by the local police department during his probation had been inadequate.
On 20 December 2005 the Odessa Regional Court of
Appeal (“the Court of Appeal”) quashed the aforementioned judgment on the
applicant’s appeal and remitted the case back to the first-instance court for
fresh examination. It referred, in particular, to a number of factual
discrepancies which had to be reconciled. Thus, according to the search report,
the search of the applicant’s house had lasted from 4 p.m. till 7.30 p.m. on
2 July 2004. At the same time, it was indicated in the report of the
undercover agent that he had received the pre-marked banknotes for the
operation at about 5 p.m. and had bought liquid opium from the applicant at
about 6 p.m. In other words, it appeared that the search had started about two
hours before the undercover drug purchase took place. There were also
discrepancies in the statements of the attesting witnesses, one of whom had submitted
that the applicant had been searched in the house, while the other had noted
that his body search had taken place outside, near the police car. The
appellate court also noted that the applicant’s allegations of the fabrication
of evidence and his beating had not been thoroughly investigated.
Furthermore, the Court of Appeal criticised the
trial court for its failure to “assess the fact that the search had been
conducted on the basis of a search warrant of 19 May 2004, which had
been issued at the investigator’s request concerning a different criminal case
initiated a long time before the criminal investigation [against the applicant]
was launched”.
On 3 April 2006 the applicant applied to the Suvorivskyy Court for his release subject to an undertaking not to abscond.
On 19 April 2006 the court rejected this application,
having noted that the applicant was suspected of a crime punishable with more
than three years’ imprisonment and that he already had three drug-related convictions
to his name.
On 6 November 2006 the applicant again applied to
be released.
On 15 November 2006 the Suvorivskyy Court replied
to him by letter, stating as follows:
“Your request for a change of the preventive measure of
6 November 2006 has been examined. Please be informed that you
previously submitted a similar request, which was rejected by a ruling of [this
court] on 19 April 2006.
Given the fact that similar requests on your part have been
responded to, the present request ... will be archived (“списати
в наряд суду”)”.
On 6 June 2007 the Suvorivskyy Court issued a
new judgment in which it made the same findings as before. As noted therein, the
two witnesses had testified that the applicant had been subjected to a body
search outside the house. As to the report of the undercover agent, it was not
a valid procedural document and therefore could not be relied on. The judgment
was silent as to why the search of the applicant’s house had been conducted on
the basis of a search warrant issued two months earlier and relating to a
different criminal case.
The Suvorivskyy Court also held as follows in
the operative part of its judgment:
“To maintain [the applicant’s] detention as a preventive
measure pending the entry into force of the verdict.
To calculate the sentence from 2 July 2004, that is from the
date of [the applicant’s] actual arrest.”
The applicant and the lawyer acting on his
behalf appealed against the judgment of 6 June 2007. The lawyer submitted,
in particular, that the applicant’s allegation of his beating by the police on
2 July 2004 had not been duly addressed.
On 4 December 2007 the Court of Appeal upheld
the applicant’s conviction. It noted that the applicant had chosen “the tactics
of denial of the events and manipulating the established facts” by challenging
the lawfulness of the police officers’ actions during his arrest. Similarly to
the first-instance court, the appellate court did not address the issue of the
time and context of the search warrant, on the basis of which the applicant’s
house had been searched on 2 July 2004.
On 22 March, 28 May, 11 June and 9 July
2008 the applicant lodged cassation appeals with the Supreme Court. All of them
were returned to him for his failure to comply with procedural formalities,
such as putting a date under his cassation appeal, signing it, or attaching a
duly certified copy of the judicial decisions challenged. On three occasions
the applicant was invited to rectify the indicated shortcomings. As he failed
to comply, on 7 August 2008 the Supreme Court dismissed his cassation
appeal without examination on the merits.
E. The applicant’s correspondence with the Court
On 13 May 2005 the applicant wrote his first
letter to the Court, in which he enquired about the procedure of introduction
of an application before the Court.
On 15 July 2005 he further wrote to the Court
that he considered his case yet premature, but that he planned to introduce in
the future complaints under Article 5 § 3 and Article 6 § 3 (c) and (d) of the
Convention.
On 3 August 2005 the Registry of the Court
warned the applicant that his file would be destroyed if he did not submit an
application form within a year.
On 19 July 2006 the applicant submitted a completed
application form, which he subsequently supplemented on a number of occasions.
The applicant’s letters to the Court sent from
the pre-trial detention centre (SIZO) on 13 May and
15 July 2005, 19 July 2006, and 7 May, 18 July and 30 November 2007,
bore the SIZO stamp on their first page with a handwritten date. The first page
of his letters sent to the Court from prison on 4 June 2008 and
20 January 2009 bore the stamp of the prison.
On 22 January, 27 July and
12 September 2007 the Registry of the Court asked the applicant to
submit copies of a number of documents.
In his subsequent correspondence the applicant
confirmed receipt of the Registry’s letters of 22 January and 27 July, but
never referred to that of 12 September 2007 and did not comply with
the request contained therein.
According to the information provided by the
Government, there was no incoming correspondence for the applicant registered
in the SIZO between 10 August and 10 November 2007.
On 20 January 2009 the applicant informed the
Registry that he had sent a letter to the Court on 21 October 2008, indicating the
number it had been assigned by the prison administration. He also noted that the
administration charged money for sending correspondence to the Court, which he
could not afford. The applicant therefore stated that he had had to send his
letter of 20 January 2009 through his mother. However, that letter
arrived at the Court directly from the prison, accompanied by its cover letter
and with the prison stamp on the first page.
The Court did not receive the applicant’s letter
of 21 October 2008. According to the Government, it was dispatched by
the prison administration on the same day as it was submitted by the applicant
for postage.
F. Other relevant facts
On 4 August 2009 the applicant was released on
parole.
On an unspecified date (apparently after the
case had been communicated to the Government and the Government had tried to
collect the relevant information), the SIZO issued an information note stating that
the logbook of detainees’ complaints for 2004 and 2005 had been destroyed on 29
January 2009.
On 14 November 2011 the Suvorivskyy District
Prosecutor’s Office issued an information note stating that the materials of
the investigation into the applicant’s allegation of ill-treatment (2005) had
been destroyed on 20 January 2010 after the expiry of the five-year storage
period envisaged by the recordkeeping guidelines approved by the General
Prosecutor’s Office on 28 December 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Search of home and other property
Article 30 of the Constitution (1996) guarantees
the inviolability of everyone’s home. It prohibits entry into the home or other
property of a person, and the examination or search thereof, other than
pursuant to a reasoned court decision.
Article 311 of the Civil Code (2003) reiterates
the above constitutional principles.
Article 177 of the Code of Criminal Procedure
(1960) requires that for a search of a house or other property to be conducted,
there must be sufficient grounds to believe that the items to be searched for
might be found there and a reasoned court decision authorising the search. Such
a decision by a court cannot be appealed against. Article 183 of the Code
requires the investigating officer in charge of the search to serve the search
warrant on the person(s) occupying the relevant premises. If the items searched
for are not given to the investigating officer voluntarily, the latter must
conduct the search forcibly.
The relevant provisions of the Law “On Search
and Seizure Activities” (1992) are summarised in the Volokhy v. Ukraine
judgment (no. 23543/02, § 27, 2 November 2006).
B. Pre-trial detention
Article 29 of the Constitution is cited in the
judgment on the case of Svershov v. Ukraine (no. 35231/02, § 39, 27
November 2008).
The relevant provisions of the Code of Criminal
Procedure (CCP) are to be found in the judgments in the following cases:
Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53-54, ECHR 2005-II
(extracts); Kucheruk v. Ukraine, no. 2570/04, §§ 67-69, 6
September 2007; and Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 24-25, 12 March 2009.
THE LAW
I. DATE OF INTRODUCTION OF THE APPLICATION
The Court notes that, in accordance with its established
practice and Rule 47 § 5 of the Rules of Court, it normally considers the date of the introduction of an application to be the date of the
first communication indicating an intention to lodge an application and giving
some indication of the nature of the application (see Kemevuako v. the
Netherlands (dec.), no. 65938/09, §§ 17 and 19, 1 June 2010).
The Court notes that in the present case the
applicant’s first communication with the Court on 13 May 2005 was confined to
his enquiry about the procedure of introduction of an application before the
Court. As to his subsequent letter to the Court of 15 July 2005, the applicant
merely referred to his plans to submit some complaints in the future
considering his case to be premature at the time (see paragraphs 52-53 above).
The Court observes that only on 19 July 2006 the
applicant submitted a completed application form (see paragraph 55 above).
It therefore considers this to be the date of
introduction of the present application.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant alleged that he had been beaten up
by the police on 2 July 2004. He 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
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant complained that on 2 July 2004 he
had been beaten up by the police and that, as a result, he had sustained a contusion
of the right kidney. In substantiation, he referred to the medical certificate
of 7 July 2004 (see paragraph 25 above).
The Government denied this allegation. They
noted that on 3 and 7 July 2004 the applicant had undergone medical examinations
in civilian hospitals, with no injuries having been discovered. They further
pointed out that, even though the applicant had mentioned to the doctor on 7
July 2004 that he had been ill-treated by the police on 2 July 2004, he had not
specified “the circumstances of that ill-treatment”. Lastly, the Government
noted that the investigation file had been destroyed following the expiry of
the storage time-limits (see paragraph 60 above). In sum, they contended that
the applicant’s complaint should be dismissed as unsubstantiated.
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence. In assessing evidence,
the Court has generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161,
Series A no. 25). Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of persons
under their control in custody, strong presumptions of fact will arise in
respect of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as lying with the authorities to provide a satisfactory and
convincing explanation (see Ribitsch v. Austria, 4 December 1995,
§ 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII).
Turning to the present case, the Court observes
that it communicated the case to the respondent Government on 16 December 2009
albeit without including the applicant’s complaint under Article 3 of the Convention,
this complaint being communicated later (see paragraphs 4 and 5 above). It
notes that on 20 January 2010 the domestic authorities had destroyed the file
on the investigation of the applicant’s allegation of ill-treatment by the
police (see paragraph 64 above). The Court considers it unacceptable that the
authorities would destroy any documents relevant to what transpired during an
applicant’s detention at a time after a complaint concerning that detention had
been communicated to the respondent Government and before any part of an
applicant’s case had been declared inadmissible.
The Court also emphasises that the obligation on
the part of the domestic authorities to investigate a credible allegation of
ill-treatment by police does not derive from the purported victim’s attitude,
but is to be undertaken by virtue of Article 3 of the Convention (see Arat
v. Turkey, no. 10309/03, § 43, 10 November 2009, and Teslenko
v. Ukraine, no. 55528/08, § 117, 20 December 2011). In circumstances
where it is clear that the file investigating the applicant’s complaints of
ill-treatment has been destroyed, the Court is precluded from considering the
extent to which, if at all, the authorities complied with their procedural
obligations under Article 3. That said, there is nothing to indicate that they
did so.
In the present case, because of the destruction
of the investigation file, the Court is also precluded from using materials
that were on that file in assessing the applicant’s substantive complaints of
ill-treatment. It remains to be seen to what extent this will hamper the
examination of the applicant’s substantive complaint.
The Court observes that the parties are in dispute
as to whether the applicant sustained any injuries which might be attributable
to the police.
It notes that the Government relied, in
particular, on the medical certificate issued by a neurosurgeon on 3 July 2004
reporting the absence of any injuries to the applicant in so far as his area of
competence was concerned (see paragraph 19 above). The Court sees no reasons
for questioning this finding. It notes, however, that the scope of that
examination was quite limited, as the doctor was not called upon to evaluate the
applicant’s general state of health or to establish the presence or absence of
any injuries on him other than those of a neurological nature. The reasons for
that particular medical examination on the day following the applicant’s de facto,
but apparently undocumented, detention (see, in particular, paragraphs 18,
27-28 and 48 above) remain unknown.
The Court further notes that both parties relied
on the medical certificate of 7 July 2004 in support of their argument. Having
regard to the unambiguous diagnosis of a contusion of the applicant’s right
kidney contained in that certificate, the Court does not share the Government’s
opinion that it can be regarded as disproving the applicant’s allegation of
ill-treatment. Furthermore, the Court does not lose sight of the fact that the
doctor who reached the diagnosis forwarded the information to the police (see
paragraph 26 above). This indicates that he considered the applicant’s
allegation plausible.
On the facts of the case, it is established that
on 2 July 2004 the applicant was arrested and on 7 July 2004 he was diagnosed
with a contusion of the right kidney (see paragraphs 18 and 25 above). It was
not suggested at any point that prior to his arrest the applicant had been
involved in any violence that could have resulted in such an injury. It is also
observed that no plausible alternative version of events such as would explain
the cause of the applicant’s injury has been advanced by the domestic
authorities at any stage. Therefore, it can be assumed that the injury
sustained by the applicant was caused during or after his arrest by the police
(see and compare with Kulish v. Ukraine, no. 35093/07, § 49, 21 June 2012).
The Court notes from the file that the applicant’s
complaint about his ill treatment would appear to have first been made some
five days after the assault, when he was examined by a doctor. Under the
circumstances he might well have been discouraged from voicing his allegations
by the very fact of being under the control of those whom he accused of
ill-treatment (see Nadrosov v. Russia, no. 9297/02, § 33, 31 July 2008,
and Dvalishvili v. Georgia, no. 19634/07, § 44, 18 December 2012).
In sum, the Court considers that there has been
a violation of Article 3 of the Convention in that the applicant was
subjected to ill-treatment by police.
III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
The applicant complained under Article 5 § 1 (c)
of the Convention that his detention from 20 December 2005 to 6 June 2007
had been unlawful. He further complained under Article 5 § 3 that the overall
length of his pre-trial detention had been unreasonable. Lastly, the applicant
complained under Article 5 § 4 that he had been denied adequate judicial review
of its lawfulness. The provisions relied on read 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; ...
3. 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.
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.”
A. Admissibility
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant did not submit any observations on
the merits of these complaints within the established time-limits.
The Government submitted that the applicant’s
detention from 20 December 2005 to 6 June 2007 had been in compliance with
applicable domestic law. As to the length of his pre-trial detention, which,
according to the Government’s calculation, had been two years, one month and
twenty-six days, they considered it reasonable. The Government drew the Court’s
attention to the seriousness of the charges against the applicant and his
criminal record. In their opinion, there had been sufficient and relevant
reasons for the domestic courts to remand the applicant in custody and to uphold
his continued detention. Lastly, the Government submitted that the applicant
had had - and had used on many occasions - the ability to seek judicial review
of the lawfulness of his pre-trial detention by way of lodging an application for
release. In their view, the applications for release made by the applicant had
been duly examined.
2. The Court’s assessment
(a) Article 5 § 1 (c)
The Court notes that on 20 December 2005 the
Court of Appeal, having quashed the applicant’s conviction, ordered his retrial
and further detention, yet provided no reasons for this detention and set no
time-limit on it. It lasted until his subsequent conviction by the
first-instance court on 6 June 2007.
The Court has previously examined similar
situations in other cases against Ukraine and found them to be incompatible
with the requirements of lawfulness under Article 5 § 1 of the Convention (see Kondratyev
v. Ukraine, no. 5203/09,
§§ 109-112, 15 December 2011, as a recent reference containing a brief
overview of the relevant cases against Ukraine).
. There are no arguments in this case
capable of persuading the Court to reach a different conclusion.
. There has accordingly been a
violation of Article 5 § 1 (c) of the Convention in this regard.
(b) Article 5 § 3
The Court notes that the applicant remained in continuous
detention following his arrest on 2 July 2004. With the periods when he was
detained after conviction for the purposes of
Article 5 § 1 (a) of the Convention having been deducted
from the total time that he was deprived of his liberty, the overall period to
be taken into consideration in the instant case is two years, two months and
eight days (from 2 July 2004 to 14 March 2005 and from 20 December 2005 to 6
June 2007).
The Court reiterates that the question whether a
period of time spent in pre-trial detention is reasonable cannot be assessed in
the abstract. Whether it is reasonable for an accused to remain in detention
must be assessed on the facts of each case and according to its specific
features. Continued detention can be justified in a given case only if there
are actual 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, Kudła v. Poland [GC],
no. 30210/96, §§ 110 et seq., ECHR 2000-XI; and
Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).
The existence and persistence of a reasonable
suspicion that the person arrested has committed an offence is a condition sine
qua non for the lawfulness of the continued detention. However, after a certain
lapse of time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued to
justify the deprivation of liberty. Where such grounds are “relevant” and
“sufficient”, the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct of the proceedings (see
Labita v. Italy [GC], no.
26772/95, §§ 152 and 153, ECHR 2000-IV; and Idalov,
cited above, § 140). Justification
for any period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria, no.
38822/97, § 66, ECHR 2003-I). When deciding whether a person should be released
or detained, the authorities are obliged to consider alternative measures of
ensuring his appearance at trial (see Jablonski v. Poland, no.
33492/96, § 83, 21 December 2000).
The responsibility falls in the first place to
the national judicial authorities to ensure that, in a given case, the
pre-trial detention of a suspect 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 public
interest which justifies 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 established
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 Idalov,
cited above, § 141, referring, by way of
example, to McKay v. the United Kingdom [GC], no. 543/03, §
43, ECHR 2006-X).
This means that, at every occasion when a court
has to decide whether or not to extend a pre-trial detention, it has to make a
fresh assessment of the justification for maintaining the detention. Where the
court maintains the detention using each time similar, not to say stereotyped,
wording, without showing that it actually pays attention to the passage of
time, the requirements of Article 5 § 3 of the Convention are not met (see Mansur
v. Turkey, 8 June 1995, § 55, Series A no. 319 B; Svipsta v. Latvia,
no. 66820/01, § 109, 9 March 2006; and Tiron v. Romania,
no. 17689/03, § 39, 7 July 2009).
. The Court has often found a
violation of Article 5 § 3 of the Convention in cases against Ukraine on the
basis that, even for lengthy periods of detention, the domestic courts referred
to the same set of grounds, if any, throughout the period of the applicant’s
detention (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 59-61,
6 November 2008, and Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and
99, 10 February 2011).
. In the present case the seriousness
of the charges against the applicant and the risk of his absconding or
reoffending had been advanced in the initial order for his detention. This
reasoning did not evolve with the passage of time. Nor did the domestic courts
consider at any stage any alternative preventive measure instead of detention
on remand.
. The foregoing considerations are
sufficient to enable the Court to conclude that there has been a violation of
Article 5 § 3 of the Convention.
(c) Article 5 § 4
The Court reiterates that Article 5 § 4 of the
Convention entitles arrested or detained persons to a review bearing upon the
procedural and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that the court
with jurisdiction has to examine not only compliance with the procedural
requirements of domestic law but also the reasonableness of the suspicion underpinning
the arrest, and the legitimacy of the purpose pursued by the arrest and the
ensuing detention (see Butkevičius v. Lithuania, no. 48297/99,
§ 43, ECHR 2002-II (extracts)).
The Court observes that the domestic court
refused to look again into the reasonableness of the applicant’s detention on
the grounds that it had ruled on the lawfulness of his detention on a previous
occasion (see paragraph 46 above), therefore denying the applicant’s right to a
review of the lawfulness of his detention as guaranteed by Article 5 § 4 (see Yeloyev
v. Ukraine, cited above, § 65). Moreover, the Court held in its judgment in
the case of Kharchenko v. Ukraine, cited above, that this problem is of a systemic nature stemming from legal lacunae
and inadequate administrative practice (§§ 100 and 101).
It considers that the same findings are
pertinent in the present case.
There has therefore been a violation of Article
5 § 4 too.
IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant raised a number of complaints
under Article 6 §§ 1, 3 (b), (c) and (d) of the Convention about
the alleged unfairness and length of his trial. The provisions relied on read
as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a reasonable
time by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the
following minimum rights:
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; ...”
A. Complaints as to the fairness of the criminal
proceedings against the applicant
The applicant’s complaints under Article 6 §§ 1
and 3 (c) of the Convention as regards the alleged violation of his right to
the privilege against self-incrimination and early access to a lawyer were
communicated to the Government.
The Government submitted that the applicant had
failed to duly raise these issues in his cassation appeal and could not
therefore be regarded as having exhausted domestic remedies.
The applicant disagreed. He admitted that his
cassation appeal had not been accepted for examination by the Supreme Court on
the grounds that it had not complied with various formal requirements (see
paragraph 51 above). The applicant, however, expressed suspicion that the
letters from the Supreme Court indicating certain shortcomings in his cassation
appeal had in fact been forged by the judge of the first-instance court dealing
with his case, who he claimed had wished to prevent him bringing the case
before the Supreme Court.
The Court reiterates that the purpose of
Article 35 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged against them
before those allegations are submitted to the Convention institutions (see, for
example, Hentrich v. France, 22 September 1994, § 33, Series A no.
296-A). Thus the complaint intended to be made subsequently to the Court must
first have been made - at least in substance - to the appropriate domestic body
in compliance with the formal requirements and time-limits laid down in
domestic law (see Cardot v. France, 19 March 1991, § 34, Series A
no. 200). A failure to comply with such requirements may lead to a finding
that domestic remedies have not been exhausted (see, among many other
authorities, MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005-XI).
At the same time, the Court notes that only effective
remedies are required to be exhausted (see Paksas v. Lithuania [GC], no.
34932/04, § 75, ECHR 2011 (extracts)).
The Court has already held that an appeal in
cassation to the Supreme Court (under the criminal procedural legislation in
force at the material time) is considered an effective remedy for complaints of
unfair criminal proceedings (see, mutatis mutandis, Arkhipov v.
Ukraine (dec.), no. 25660/02, 18 May 2004, and Borotyuk v. Ukraine,
no. 33579/04, § 73, 16 December
2010). The applicant could reasonably have expected the domestic courts
to deal with his complaint and to remedy any violation, in particular, of his
right to mount a defence, if found (see Shalimov v. Ukraine, no.
20808/02, § 62, 4 March 2010, and Borotyuk v. Ukraine, cited above, § 73).
It follows that in the present case, in order
to comply with the exhaustion requirement, the applicant should have raised his
complaints concerning the alleged unfairness of his trial in a cassation appeal
to the Supreme Court.
The Court notes, however, that the applicant
failed to comply with the formalities existing in domestic law for introducing
his appeal in cassation. The only explanation given by him for this failure was
that he suspected forgery of documents by a judge of the first-instance court
(see paragraph 112 above). In the absence of any direct or indirect evidence in
support of this submission, the Court cannot be satisfied as to the veracity of
this explanation. It does not lose sight of the absence of any submissions by
the applicant that the guidelines given to him as regards the shortcomings in
his cassation appeals and the ways of their rectification were unreasonable or impossible
to comply with, or that he was precluded from complying with them by a lack of
legal assistance or owing to any other specific circumstances.
In sum, the Court considers that the applicant’s
complaints under this head, both those which were communicated to the
respondent Government and those which were not (see paragraphs 109 and 110
above), should be rejected for non-exhaustion of domestic remedies under
Article 35 §§ 1 and 4 of the Convention.
B. Complaint as to the length of the trial
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the criteria laid down in the Court’s case-law,
in particular the complexity of the case, the applicant’s conduct and the
conduct of the competent authorities (see Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
The Court notes that the criminal proceedings
against the applicant in the present case lasted less than four years for the
pre-trial investigation and the judicial proceedings before the courts of three
levels of jurisdiction, including one remittal of the case by the appellate
court to the first-instance court. The Court does not consider the length of
these proceedings as unreasonable.
It therefore rejects this complaint as being
manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS HOME
The applicant complained that the police search
of his house on 2 July 2004 had breached his right to respect for his home
under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his ...
home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant maintained his complaint in
general terms.
The Government admitted that there had been an
interference with the applicant’s right to respect for his home. However, they
considered it to have been in compliance with the requirements of paragraph 2
of Article 8 of the Convention. The Government observed that the search of the
applicant’s home had been based on the judicial ruling of 19 May 2004 and that
it had been necessary for the prevention of crime. While the aforementioned ruling
had concerned a criminal investigation in respect of a different person, Mr B.,
it had become known to the investigator that the applicant might have been involved
in the production and sale of illegal drugs. Accordingly, it had been legitimate
to verify this information by way of a search. Lastly, the Government
emphasised that the lawfulness of the search in question had been reaffirmed by
the courts of three levels of jurisdiction in the course of the trial and
appeal proceedings.
The Court finds, and this is common ground
between the parties, that the search complained of amounted to an interference
with the applicant’s right to respect for his home.
The Court next observes that the search in
question had a legal basis in domestic law, namely Article 177 of the Code of
Criminal Procedure (see paragraph 67 above).
Furthermore, it was ordered in the course of a
criminal investigation into the possession of illegal drugs (see paragraph 11
above). It therefore served a legitimate aim, namely the prevention of crime.
It remains to be examined whether the interference was “necessary in a
democratic society”.
The Court reiterates that where States consider
it necessary to resort to measures such as searches of residential premises in
order to obtain evidence of offences, it will assess whether the reasons
adduced to justify such measures were relevant and sufficient and whether the
proportionality principle has been adhered to. The Court will also explore the
availability of effective safeguards against abuse or arbitrariness in domestic
law and check how those safeguards operated in the specific case under
examination. Elements to be taken into consideration in this regard include,
but are not limited to, the manner and circumstances in which the order was
issued, in particular whether there was further evidence available at that
time, and the content and scope of the order, having particular regard
to the safeguards taken in order to confine the impact of the measure to
reasonable bounds (see Buck v. Germany, no. 41604/98, §§ 44-45, ECHR
2005-IV).
The Court notes that in the present case the
search of the applicant’s home was conducted under a warrant issued by the Suvorivskyy Court and was therefore subject to judicial scrutiny. However, this mere fact
will not in itself necessarily amount to a sufficient safeguard against abuse
(see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January
2004). In assessing whether the State’s interference was proportionate, the
Court must consider the particular circumstances of each case (see, for
example, Camenzind v. Switzerland, 16 December 1997, § 45, Reports
of Judgments and Decisions 1997-VIII).
The impugned search took place in the course of
a criminal investigation concerning an individual, Mr B., who was
suspected of possessing illegal drugs, following his allegation that he had
bought drugs from the applicant (see paragraph 9 above). At that stage, there
was no criminal investigation pending in respect of the suspicion of the
applicant’s possession or distribution of illegal drugs. The Court accepts that
the task of uncovering evidence of a crime might necessitate a search of a
third party’s premises (see and compare with Buck v. Germany, cited
above, § 48). This factor is, however, to be borne in mind in applying the
proportionality test (see also Ratushna v. Ukraine, no. 17318/06, § 74, 2 December 2010).
The Court notes that, in order to grant a
warrant for a search of a house or other property, the Ukrainian courts are
required by law to be satisfied that there are sufficient grounds to believe
that the items to be searched for might be found there (see paragraph 67
above).
The Court has no reasons to doubt that when
issuing the search warrant on 19 May 2004 the Suvorivskyy Court had some
evidence before it suggesting that the applicant could have had drugs in his
possession with the intent to supply them. Namely, there had been an allegation
made that the applicant was selling drugs. This warranted investigation, possibly
by way of a search of his house.
The Court observes, however, that the police only
searched the applicant’s house on the basis of the aforementioned warrant one-and-a-half
months later. No explanation for this delay is known to have been given. Moreover,
although the Court of Appeal expressly criticised the failure of the trial
court to assess the timing and the context of the search warrant in question
when quashing the judgment of 14 May 2005 (see paragraph 42 above), this
issue was completely disregarded in the subsequent judicial decisions delivered
in the criminal proceedings against the applicant (see paragraphs 47 and 50
above).
The Court does not lose sight of the fact that
the impugned search took place almost immediately after an undercover operation
(even though the exact timing of the events was in dispute - see paragraph 41
above). This might have implied a certain urgency with a view to securing evidence
of a crime (see and compare with Mastepan v. Russia, no. 3708/03, §§ 41 and 44, 14 January 2010). In this
case, however, the reliance of the investigating authorities on the search
warrant of 19 May 2004 does not demonstrate such urgency.
. Lastly, the Court cannot overlook
certain factual discrepancies around the conduct of the search, which were not
reconciled in a convincing manner (see paragraphs 16-17, 41 and 47 above).
. Regard being had to the foregoing,
the Court does not consider that the interference with the applicant’s right to
respect for his home was proportionate to the legitimate aim pursued.
There has therefore been a violation of Article
8 of the Convention in this regard.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS CORRESPONDENCE
Having regard to the fact that a number of
letters from the applicant to the Court bore the stamp of the detention
facilities on the first page, the Court considered it appropriate to raise, of
its own motion, the issue of Ukraine’s compliance with Article 8 of the
Convention on account of the monitoring of the applicant’s correspondence with
the Court (see Glinov v. Ukraine, no. 13693/05, § 42, 19 November 2009). This Article, insofar as relevant,
reads as follows:
“1. Everyone has the right
to respect for his ... correspondence.
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
The Government contended that this part of the
application should be rejected: for the applicant’s failure to comply with the
six-month time-limit in so far as his complaint concerned the alleged
interference by the administration of the detention facilities with his
correspondence before 21 December 2005 (the entry into force of
legislative amendments prohibiting monitoring of detainees’ correspondence with
the Court); and for non-exhaustion of domestic remedies as regards the alleged
monitoring of his correspondence with the Court thereafter.
The Government further contended that the
applicant had submitted his letters addressed to the Court to the
administration for dispatching without any envelopes and that his
correspondence had been sent at the expense of the administration. Accordingly,
the staff members in charge had had no other option than to put a stamp on the
first page of every letter. This did not, however, mean that they had read the
correspondence, as the applicant had been able to immediately seal the
envelopes himself.
The applicant did not comment.
The Court does not consider it necessary to
decide on the Government’s objections since this complaint is in any event
inadmissible.
The Court notes that six of the applicant’s
letters sent to it from the SIZO and two letters sent from the prison had the
SIZO or the prison stamp on their first page (see paragraph 56 above). However,
unlike in the case of Glinov, cited above, where the administration of
the detention facilities accompanied the applicant’s letters to the Court by
brief summaries of their contents (§§ 27,
28 and 55), no such summaries were attached to the applicant’s letters
in the present case. Nor did the applicant refer to any factual details
suggesting that the administration had in fact read his correspondence.
The Court does not consider implausible the
Government’s submission that the applicant had submitted his correspondence to
the administration without envelopes. Accordingly, the mere fact that the first
page of his letters was stamped does not automatically imply monitoring of his
correspondence.
In sum, having regard to all the circumstances
of this case, the Court is not convinced that there was any interference with
the applicant’s right to respect for his correspondence under Article 8 in the
present case.
It therefore considers that this part of the
application discloses no appearance of a violation of that provision, and dismisses
it as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
VII. ALLEGED INTERFERENCE WITH THE APPLICANT’S
RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION
Lastly, the applicant complained that the
prison administration had hindered his communication with the Court by charging
him for postage and that, as a result, he had been obliged to send correspondence
to the Court - namely, the letter of 20 January 2009 - through his mother. He
also complained that he had never received the Court’s letter of
12 September 2007 and that his letter of 21 October 2008 had not reached
the Court.
The Court considers it appropriate to examine the above
complaint under Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth
in the Convention or the Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.”
The Government submitted that the
administration of the detention facilities had not hindered the applicant’s
communication with the Court in any way, having dispatched his letters and
having passed on those received from the Court addressed to him without delay.
Moreover, they pointed out that it had been the administration that had borne
the postage costs.
The Court
reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. While the obligation
imposed is of a procedural nature, distinguishable from the substantive rights
set out in the Convention and its Protocols, it flows from the very essence of
this procedural right that it is open to individuals to complain of its alleged
infringement in Convention proceedings (see Manoussos v. the Czech
Republic and Germany (dec.), no. 46468/99, 9 July 2002). The
Court also underlines that the undertaking not to hinder the effective exercise
of the right of individual application precludes any interference with the
individual’s right to present and pursue his complaint before the Court
effectively (see, among other authorities and mutatis mutandis, Akdivar
and Others v. Turkey, 16 September 1996, § 105, Reports 1996-IV;
Kurt v. Turkey, 25 May 1998, § 159, Reports 1998-III; Tanrikulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Şarlı v. Turkey, no.
24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey,
no. 25656/94, 18 June 2002).
Turning to the substance of the applicant’s
complaint, the Court notes that one of the letters which the applicant sent to
the Court and one letter from the Court addressed to him did not arrive. It is
possible that this was due to a technical error at some stage of their dispatch
or delivery. However, the Court is unable to find on that basis alone that the Ukrainian
authorities deliberately stopped the applicant’s letter or failed to ensure
that it was duly dispatched or that they deliberately withheld the Court’s
letter addressed to him (see Vasiliy Ivashchenko v. Ukraine,
no. 760/03, § 115, 26 July 2012, with further references).
. As to the applicant’s submission
that he had been obliged to send his letter of 20 January 2009 through his
mother, it appears that he is mistaken in this regard as there is evidence that
this letter was dispatched for postage to the Court directly from the prison
(see paragraph 60 above).
. Lastly, as regards the applicant’s
complaint that he could not afford to pay for postage, the Court notes that it
is not supported by any factual details, such as, for example, information
relating to the applicant’s financial situation and the relevant postage costs.
. In sum, the Court concludes
that the respondent State did not fail to comply with its obligations under
Article 34 of the Convention.
VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 5 § 1 of the Convention that the entire
period of his detention had been unlawful, in addition to that from
20 December 2005 to 6 June 2007 (see paragraph 89 above). He further
complained under Article 1 of Protocol No. 1 to the Convention that
the police had damaged some of his property during the search on 2 July 2004.
The applicant next complained in general terms and without referring to any
provision of the Convention that he had received poor medical care in prison. Lastly,
he cited Articles 7 and 17 of the Convention and Article 3 of Protocol No. 7 to
the Convention without being more specific.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that there is a failure to substantiate those
claims and thus concludes that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant Article 35 §§ 3 (a)
and 4 of the Convention.
IX. 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.”
A. Damage
The applicant claimed 2,000,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government contested the claim as excessive
and irrelevant.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, taking into account the nature of
the violations found and ruling on an equitable basis, it awards the applicant
EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The applicant did not make any claim under this
head. The Court therefore makes no award.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the
applicant’s alleged ill-treatment by the police, the lawfulness of his
detention from 20 December 2005 to 6 June 2007, the length of the entire
period of his pre-trial detention and the alleged lack of adequate judicial
review of its lawfulness, and the alleged infringement of his right to respect
for his home admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the applicant’s ill-treatment by the
police;
3. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention as regards the applicant’s detention from
20 December 2005 to 6 June 2007;
4. Holds that there has been a violation of
Article 5 § 3 of the Convention;
5. Holds that there has been a violation of
Article 5 § 4 of the Convention;
6. Holds that there has been a violation of
Article 8 of the Convention on account of the police search of the applicant’s
home on 2 July 2004;
7. Holds that the respondent State has not
failed to comply with its obligations under Article 34 of the Convention;
8. Holds
(a) that
the respondent State is pay the applicant, within three months of the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine thousand
euros) in respect of non-pecuniary damage plus any tax that may be chargeable,
to be converted into the currency of the respondent State at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amount at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
9. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
