FIFTH SECTION
CASE OF
SIZAREV v. UKRAINE
(Application no. 17116/04)
JUDGMENT
STRASBOURG
January 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 Sizarev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
17116/04) 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 Konstantin Konstantinovich Sizarev
(“the applicant”), on 14 May 2004.
The Ukrainian Government (“the Government”) were most
recently represented by their Agent, Mr Nazar Kulchytskyy.
The applicant complained, in particular, about
the lawfulness and length of his pre-trial detention, the conditions in which
he had been detained, the failure of the authorities to ensure his physical safety
in detention and to duly investigate the incident of assault of which he had
complained, as well as about being handcuffed while in hospital.
On 21 March 2011 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and lives in Yevpatoriya.
He formerly worked as an assistant in a local
court. Before the events in question, he did not have a criminal record.
A. Criminal proceedings against the applicant and his
detention
On 3 October 2003 a Mr K. complained to the
police that the applicant had beaten him up.
Although it initially found no reason to
prosecute, on 24 February 2004 the Yevpatoriya City Prosecutor’s Office
opened a criminal case against the applicant on suspicion of the deliberate
infliction of bodily harm of a medium degree of severity on Mr K. (an
offence punishable by a maximum of three years’ imprisonment - see paragraph 82
below).
On 18 March 2004 the applicant was ordered not to
leave town.
On 25 March 2004 he appointed his wife, Ms D., as
his representative.
From 8 to 29 April 2004, the applicant was on
sick leave owing to a leg injury. As a result, he failed to appear before the
investigator in answer to a summons.
On 19 April 2004 the investigator applied to the
Saky City Court (“the Saky Court”) with a request for the applicant’s pre-trial
detention as a more appropriate preventive measure, given his failure to comply
with the summons and also the fact that his actual place of residence was
unknown.
On 22 April 2004 the Saky Court ordered the
police to ensure the applicant’s appearance.
On the morning of 27 April 2004 the applicant
was arrested.
On the same date the Saky Court allowed the investigator’s
applications at a hearing which was attended by the applicant and the
prosecutor. The applicant’s request for his wife to be present was, however,
rejected.
The Saky Court noted that while pre-trial
detention was normally ordered in cases where the likely penalty was more than
three years’ imprisonment, it was possible to make an exception. The court noted
that the applicant had failed to appear in response to a number of the
investigator’s summonses, that he did not actually live at the address he had
given to the investigating authorities as his place of residence, and that he
had left Yevpatoriya on many occasions without informing the investigator, and
in breach of the obligation not to leave town. Furthermore, the victim, Mr K.,
complained that the applicant had threatened him. The court observed that all
those factors sufficed to consider the applicant’s case exceptional within the
meaning of Article 155 § 1 of the Code of Criminal Procedure and to order
pre-trial detention as a preventive measure pending his trial (see paragraph 84
below).
Also, on 27 April 2004, Ms D. lodged an appeal against
that decision on the applicant’s behalf. She submitted that putting the applicant
in pre-trial detention was contrary to the criminal procedural
legislation given the minor nature of the crime in question. She further argued
that the Saky Court had failed to take into account the fact that, as confirmed
by medical records, the applicant had been undergoing medical treatment since 8
April 2004 and therefore had a valid reason for his failure to attend the
investigation. She also pointed out that the court had disregarded the fact
that the applicant had two children of minor age and that she herself (as his
wife) was disabled. Lastly, Ms D. complained that the hearing of the Saky Court
on 27 April 2004 had taken place in her absence.
On 28 April 2004 the police questioned Ms D. as
a witness in the criminal proceedings against the applicant and accordingly
informed her that she was no longer permitted to represent him.
On an unspecified date the applicant then
appointed a Mr N. as his lawyer.
On 3, 4 and 11 May 2004 the applicant requested
that Ms D. be readmitted to the proceedings as his representative but his
requests were turned down.
On 7 May 2004 another lawyer, a Mr L., joined
the proceedings as the applicant’s representative.
On 19 May 2004 the charge against the applicant
was extended to include intent to intimidate the victim (leading to the maximum
possible sentence of five years - see paragraph 82 below).
On the same day the applicant’s wife, Ms D., was
readmitted as his representative in the proceedings, in addition to the two
lawyers, Mr N. and Mr L., who were already representing him.
On 1 June 2004 the Court of Appeal of the
Autonomous Republic of Crimea (“the Crimea Court of Appeal”), in the presence
of the applicant’s lawyers, excluding Ms D, examined the applicant’s appeal
against his being taken into pre-trial detention. It upheld both the reasoning
and the operative part of the ruling of the Saky Court of 27 April 2004.
On 22 June 2004 the Zaliznychnyy District Court
of Simferopol (“the Zaliznychnyy Court”) commenced the trial. It noted in its
ruling following the preparatory hearing that the “preventive measure [had
been] chosen correctly and there [were] no reasons for lifting or changing it”.
On 5 and 7 July 2004 the Zaliznychnyy Court rejected
the applicant’s two requests for release (the case file does not contain copies
of these decisions).
On 7 July 2004 the Zaliznychnyy Court, on a
request by the investigator, ordered a psychiatric assessment of the applicant in
order to establish his fitness to stand trial. The reasons given by the
investigator were as follows: firstly, there was a disparity between the
applicant’s various character references; secondly, no investigation had been made
into his aggressive and motiveless behaviour at the time of the crime or his persistent
evasiveness during the initial investigation before his arrest; and, finally, he
had suffered a head injury which could have affected his mental state. The
applicant’s lawyer, Mr L., supported the investigator’s request, whereas the
applicant and his wife opposed it. The court found that a psychiatric assessment
was indeed necessary in order to gain a comprehensive view of the applicant’s
personality.
On 1 October 2004 the Zaliznychnyy Court found
the applicant guilty of negligently inflicting bodily harm of a medium degree
of severity on Mr K. and sentenced him to a one-year suspended term of
imprisonment. The court released the applicant subject to an obligation not to
leave town.
On 14 December 2004 the Crimea Court of Appeal
quashed the aforementioned judgment and remitted the case to the first-instance
court for fresh examination.
On 25 November 2005 the Zaliznychnyy Court found
the applicant guilty of the deliberate infliction of injuries of medium-severity
on Mr K. with the intent to intimidate him and sentenced him to two years’
imprisonment. The court also changed the preventive measure imposed on the
applicant from the order not to leave town to one of detention, without further
explanation. The applicant was arrested on the court premises.
The applicant and his representatives appealed
against the judgment, alleging that it was based on a distorted assessment of
the facts of the case and unreliable witness statements.
On 24 January 2006 the Crimea Court of Appeal
dismissed those appeals. However, it dispensed the applicant from serving the
sentence and released him on the ground that he had two children of minor age.
The applicant lodged a cassation appeal, seeking
acquittal.
On 25 January 2007 the Supreme Court found
against him.
B. The incident involving the applicant in the
Yevpatoriya Temporary Detention Facility and the subsequent investigation
On 27 April 2004, at 7 p.m., the applicant was put
in cell no. 10 of the Yevpatoriya Temporary Detention Facility (“the ITT”)
which housed approximately ten detainees. About an hour later, the ITT administration
discovered that he had sustained multiple injuries while in that cell.
Between 29 April and 14 May 2004 a forensic
medical examination was conducted. It concluded that the applicant’s injuries
(see also paragraph 54 below) were light and could have been sustained on
27 April 2004.
On 7 May 2004 the Yevpatoriya City Prosecutor’s Office refused to institute a criminal investigation into the incident. It stated
that, as the applicant had admitted himself, he had accidentally fallen out of
the top bunk in the cell and had injured himself. There was therefore no case
to answer.
On 11 May 2004 the applicant’s lawyer complained
to the Yevpatoriya and Crimea prosecutors’ offices that the applicant had been
beaten up in the ITT on 27 April 2004. He submitted that the ITT
administration had wrongly placed his client in a communal cell shared by other
detainees including, possibly, criminals with previous convictions, whereas because
the applicant had been facing a criminal charge for the first time and had previously
worked in the court service, legislation called for him to be held separately.
On 12 May 2004 the Crimea Prosecutor’s Office quashed
the ruling of 7 May 2004 as premature and sent the case back for additional
investigation. It was noted that the applicant, a former court employee, had
been placed in a cell with convicted criminals. This matter therefore required
further examination.
On 24 May 2004 the Yevpatoriya Prosecutor’s
Office refused to institute criminal proceedings against the ITT officials in
respect of the incident of 27 April 2004 (no copy of this decision has been made
available in the case file).
On 31 May 2004 the Yevpatoriya police department
sent a letter to the applicant’s lawyer outlining its version of the events of
27 April 2004. It noted that at the time of the applicant’s arrest the ITT had
been overcrowded, holding, in total, eighty-six detainees. The situation was
compounded by the fact that one of the cells was under reconstruction. The
applicant had been placed in the least heavily occupied cell. According to the
letter, the applicant had not mentioned anything about having previously worked
in the court service and the officer on duty could not have known that.
On 22 June 2004 the Chief of the Yevpatoriya police
department reprimanded the ITT officials for having put the applicant into a
cell with convicted criminals0, in breach of Section 8 of the Pre-Trial
Detention Act (see paragraph 78 below).
On 30 July 2004 the Yevpatoriya City Prosecutor’s
Office refused to open a criminal case against the ITT officials as it was
unable to find evidence of a crime having been committed. It appears that the
earlier refusal of 24 May 2004 had been quashed in the meantime.
On 4 August 2004 the Crimea Prosecutor’s Office
quashed that refusal and opened a criminal case under Article 125 § 2 of the
Criminal Code (deliberate infliction of light bodily injuries - see paragraph 83
below) in respect of the applicant’s allegation of having been beaten. The
investigation, at that stage, concerned the fact of the beating and was not
targeted at any particular person.
On 10 March 2005 the Crimea Department of the
Ministry of the Interior completed its own internal enquiry into the matter.
Its conclusions were as follows: there was no information about the police’s
involvement in the alleged beating of the applicant; it had, however, been
established that the applicant had been put in a communal cell in breach of
legislation and the officials responsible for that decision had been
disciplined. That measure was considered adequate in the circumstances.
The investigation was continued in order to determine
the involvement of the other detainees in the incident. It included, in
particular, the questioning of the applicant’s cellmates at that time.
On 20 December 2005 Mr Y., one of the detainees
who had been held in cell no. 10 of the ITT on 27 April 2004, confessed to
having beaten the applicant up.
On 19 March 2007 the Saky Court found Mr Y.
guilty of the deliberate infliction of light injuries on the applicant and
sentenced him to two years’ restriction of liberty. According to information set
out in the judgment, by April 2004 Mr Y. already had four criminal convictions
to his name.
The court dismissed as unsubstantiated the
applicant’s submission that the ITT officials had deliberately put him into a
cell with convicted criminals in order to “teach him a lesson”. No evidence was
found to support the applicant’s allegation that two of the other inmates, Mr D.
and an unidentified individual, had joined Mr Y. in beating him up. The applicant
also submitted that the ITT governor, Mr F., had ordered the blood and other
traces of the assault to be cleaned up immediately after the incident and that
he had instructed everybody to say that the applicant had accidentally fallen
from the upper bunk. Furthermore, the applicant stated that he had been taken
back to cell no. 10 in the evening of 27 April 2004, while awaiting transfer to
hospital, and that Mr Y. had intimidated him in order to make him say that he
had injured himself by accident. The applicant also claimed that Mr D. had
later been put in the same hospital ward, where he had continued to threaten
the applicant, and had been present during all his interviews. Most of the
inmates claimed that the applicant had provoked Mr Y. into a fight by being
noisy and aggressive. One of the ITT staff confirmed the applicant’s story that
the ITT governor had ordered the blood stains in cell no. 10 to be cleaned up and
that the applicant had been taken back to the same cell before his transfer to hospital.
This staff member had been reprimanded for having placed the applicant in the
same cell as convicted criminals. However, according to his statement, it had
been impossible to ensure compliance with the legal requirement concerning the
isolation of detainees, because the ITT had been housing double its capacity of
inmates. A woman who had been detained in the ITT at the same time as the
applicant confirmed that she had cleaned up the blood in the cell, the corridor
and in the investigation room following an order from the authorities. In his
statement, Mr D. denied having beaten the applicant, but confirmed having been
hospitalised with him in the same ward. Two detainees submitted that after the
applicant had been removed from the cell following the incident the cell door
had remained open for a couple of minutes and they had seen the ITT governor
and some other officers hitting the applicant several times. The court
dismissed this submission, however, as it was not corroborated by other
evidence.
The applicant appealed against the judgment of
19 March 2007.
On 15 May 2007 the Crimea Court of Appeal
rejected his appeal as unsubstantiated. It considered that the first-instance
court had examined the case with due diligence and in accordance with the
criminal procedural legislation.
The applicant lodged a cassation appeal
reiterating his grievances.
On 11 October 2007 the Supreme Court rejected
his request for leave to appeal as unsubstantiated.
C. The applicant’s medical condition and treatment
On 27 April 2004, at 10.50 p.m., the ITT
administration took the applicant to Yevpatoriya City Hospital, where he was
diagnosed with and treated for the following conditions: concussion, hematomas
beneath the eyelids, bruising to the left superciliary arch, bruises to the
soft facial tissue, bruises to the tongue, injuries to both ears, bruises to the
nose, and bruising of the soft tissue in the chest and lumbar regions. Other medical
conditions were also noted, namely, two chronic inflammatory conditions
(mesotympanitis and epitympanum) of the ear, nasal septum deviation, varicose
veins on the lower extremity, saline diathesis, and chronic hepatitis in the
remission stage.
As can be seen from a letter dated 17 May 2004
from the hospital administration to the applicant’s lawyer, the applicant was
treated in the hospital under the supervision of a neurosurgeon, the head of
the ear, nose and throat department, a dental surgeon, and an eye surgeon.
Furthermore, meetings were held with specialists, including the heads of the cardiology,
urology and traumatology departments.
On 13 May 2004 the applicant was discharged from
the hospital in “a satisfactory state of health”. It was noted in the medical
report that he could be kept in detention on condition that he took the
medication prescribed for him and that his state of health was monitored by an ear,
nose and throat specialist, a neurologist, and a surgeon. It was also
recommended that the applicant be examined by an audiologist given that he
complained of hearing problems.
On 13 May 2004 the applicant’s wife requested the
Court to indicate to the Government, as an interim measure under Rule 39 of the
Rules of Court, to transfer him to a hospital from the SIZO due to his
deteriorating state of health.
On 14 May 2004 her request was allowed. The
Government were asked to ensure that the applicant was transferred immediately
to a hospital or other medical institution where he could receive the
appropriate treatment for his medical condition. The Government were requested to
inform the Court by 31 May 2004 of the steps taken.
On 14 May 2004 the applicant was taken to Semashko Republic Clinical Hospital, where he was examined by an audiologist, a
maxillofacial surgeon and an oncologist. The audiologist’s conclusion was that
the applicant did not require any treatment and could be held in pre-trial
detention. The maxillofacial surgeon recommended further examination by a
neurologist. The oncologist diagnosed the applicant with a chronic tongue ulcer
and recommended a histological test.
The applicant was then transferred to the
Yevpatoriya City Hospital, where he was further examined, during the period
till 27 May 2004, by doctors specialising in different areas of medicine
including an oncologist, a neurosurgeon, an oculist, an ear-nose-throat
specialist, and a generalist, as well as the Deputy Chief Doctor in charge of
surgical services. Furthermore, on 18 May 2004 a histological test (recommended
on 14 May - see above) was performed, with no malignant tumour having been discovered.
As per the medical records, during the period from 24 to 27 May 2004 the
applicant did not complain of any pain syndromes. Having regard to the results
of the tests and examinations undertaken, the doctors concluded that the
applicant did not require inpatient medical treatment and could be held in
detention.
On 28 May 2004 the Government informed the Court
of the above, and on 1 June 2004 they submitted the respective medical
certificates.
On 5 July 2004 the President of the Chamber to
which the case was allocated lifted the interim measure.
D. The handcuffing of the applicant in hospital
During his stay in Yevpatoriya City Hospital from 27 April to 13 May 2004 the applicant was handcuffed to his bed. The
ward in which he was held had bars on its windows and a lock on its door. Three
police officers guarded the applicant at all times.
On 11 May 2004 the applicant’s lawyer complained
to the Yevpatoriya and Crimea prosecutor’s offices about the applicant’s
permanent handcuffing in hospital, which, according to him, was an unnecessary
and humiliating measure unsupported by any legal grounds.
On 22 May 2004 the Yevpatoriya police department,
to which the above-mentioned complaints had been forwarded, completed its
“internal investigation” into the matter. It concluded that the handcuffing of
the applicant during his treatment in hospital was not contrary to Section 18
of the Pre-Trial Detention Act, which prohibited this measure only in respect
of specific categories of detainee (pregnant women, the elderly, the disabled
and minors), into none of which the applicant fitted (see paragraph 81 below).
Moreover, the applicant had remained under constant medical supervision. In
addition, the handcuffs had been removed during meals, when the applicant took
his medicine, during hygienic procedures, and additionally for a further thirty
to forty minutes per day.
E. Conditions of the applicant’s detention in the
Yevpatoriya ITT
According to the applicant, following his
discharge from hospital, on 13 May 2004 he had been placed in cell no. 12 of
the ITT, measuring 1.7 by 2.1 metres. Two other detainees were already
held there. One of them had tuberculosis, and the other one had scabies. The
cell had no windows and was lit by a weak electric bulb. It was infested with
lice. There was no furniture. The three detainees slept in turns on two
mattresses on the concrete floor, with their legs resting in the non-separated
toilet area, on account of the lack of space. There was no washbasin, and the
detainees had to wash themselves using water from the toilet flush, which was
also the only source of drinking water. The cell was poorly ventilated. The
detainees could not go for walks or have showers. Furthermore, the applicant
required a special diet because of his tongue injury. In its absence and given
the ITT administration’s refusal to accept food for him from his relatives, he
went hungry.
On 19 May 2004 the applicant was transferred to
cell no. 6, which had better living conditions. He claimed that the transfer had
only been made on account of a visit to the ITT by the Ombudsman.
On 21 May 2004 the applicant was transferred
back to cell no. 12, which he shared once again with two other detainees.
On 27 May 2004 he was transferred to Simferopol
SIZO no. 15 (“the SIZO”), where he was held in the hospital wing.
On 3 June 2004 he was taken back to the ITT and
placed once more in cell no. 12.
On 10 June 2004 the applicant was transferred to
the SIZO again.
F. Civil proceedings brought by the applicant for
damages
On 14 October 2004 the applicant lodged a civil
claim with the Yevpatoriya Court seeking compensation, in the amount of 3 million
Ukrainian hryvnias (UAH), from the State Treasury of Ukraine and the
Yevpatoriya police department for non-pecuniary damage in respect of the following:
the conditions of his detention in the ITT; the failure of the ITT
administration to ensure his safety; the fact of his having been handcuffed in
hospital, the alleged lack of provision of any food or water between 27 April and
5 May 2004; the failure to provide him with the necessary medication; and the
refusal to allow his wife and the priest to see him.
On 7 April 2005 the Yevpatoriya Court allowed
the claim in part. It concluded that by having placed the applicant in a cell
with other detainees, including convicted criminals, the ITT administration had
not ensured his safety and that, as a result of this lapse, he had been beaten
up. The court also established that, in breach of section 9 of the Pre-Trial
Detention Act, the applicant had not been provided with daily one-hour walks. Furthermore,
the conditions of his detention in cell no. 12 had not conformed with the
requirements of section 11 of the Pre-Trial Detention Act. The court awarded
the applicant UAH 6,000 (at that time equivalent to 880 euros) in respect
of non-pecuniary damage and rejected the rest of his complaints on lack of
grounds.
The above-mentioned judgment was provided to the
Court by the Government along with their observations on the admissibility and
merits of the case. The applicant did not refer to it in his submissions at the
time.
In May 2012 the applicant sent the Court a copy
of the ruling of the Higher Civil and Criminal Specialised Court of 14 March
2012 (see below), without commenting on its substance. It appears from this
ruling that the judgment of 7 April 2005 was quashed on appeal and the case was
remitted to the same first-instance court for a fresh examination. On 18 November
2008 the Yevpatoriya Court once again allowed the applicant’s claim in part and
awarded him UAH 6,000. The reasoning of its judgment was similar to that of 7
April 2005. On 8 April 2009 the Crimea Court of Appeal increased that award to
UAH 25,000 (at the time equivalent to EUR 2,230).
By a ruling of 14 March 2012 the Higher Civil
and Criminal Specialised Court upheld the lower courts’ decision. It noted that
the applicant had suffered inhuman and degrading treatment on account of the
conditions of his detention and the failure of the authorities to ensure his
physical safety while in detention. It considered that the compensation awarded
in respect of non-pecuniary damage was fair.
By a letter of 18 June 2012, the Registry of the
Court transmitted to the Government for information a copy of the
aforementioned ruling of 14 March 2012. No reaction followed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Pre-Trial Detention Act 1993 (as worded at the
material time)
Section 8 reads as follows:
“... Detainees shall be held in cells in compliance with the
following isolation requirements:
... persons against whom criminal proceedings have been
instituted for the first time: separately from those with a previous criminal
conviction;
persons who have served prison sentences - separately from
those who have not been imprisoned;
persons suspected or accused of crimes classified as serious or
particularly serious - separately from other detainees;
persons who have previously worked in the judicial authorities
and courts - separately from other detainees ...”
Pursuant to section 9, detainees are entitled,
in particular, to a daily walk of one hour and a sleeping period of eight hours.
Under section 11, detainees must be provided
with everyday conditions that meet sanitary and hygiene requirements. The cell
area for one person may not be less than 2.5 square metres in area.
Section 18, which sets out the rules governing
the use of handcuffs, is summarised in the Court’s judgment in Okhrimenko v.
Ukraine (no. 53896/07, § 61, 15 October
2009).
B. Criminal Code 2001 (as worded at the material time)
Article 122 provided for correctional works for
up to two years, or restriction of liberty for up to three years, or
deprivation of liberty for up to three years, as a punishment for the crime of deliberate
inflicting bodily injuries of medium severity (§ 1). The same crime committed
with the intention of intimidating the victim was punishable with a sentence of
three to five years’ imprisonment (§ 2).
Article 125 § 2 penalised the crime of deliberately
inflicting light injuries leading to short-time health disorder with public
works of one hundred and fifty to two hundred and forty hours, or correctional
works for up to one year, or arrest for up to six months, or restriction of
liberty for up to two years.
C. Code of Criminal Procedure 1960 (as worded at the
material time)
The first paragraph of Article 155 reads as
follows:
“Detention on remand as a preventive measure shall be applied
in cases concerning offences for which the law envisages a penalty of more than
three years’ imprisonment. In exceptional situations this preventive measure
can be applied in cases concerning offences for which the law envisages
imprisonment for less than three years.”
THE LAW
I. ALLEGED
VIOLATIONS OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S BEATING
AND THE CONDITIONS OF HIS DETENTION IN THE Yevpatoriya ITT
The applicant complained under Article 3 of the
Convention that the State authorities had been responsible for his having been
beaten up by a cellmate in the Yevpatoria ITT and that the incident had not
been duly investigated.
He also complained that he had been
detained there in inhuman conditions in cell no. 12. Article 3 of the
Convention, relied on by the applicant, reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government submitted that the applicant
could no longer claim to be a victim of the above-mentioned violations. They
argued that the domestic authorities had duly investigated his complaint of
ill-treatment and had punished the perpetrator, Mr Y. They further pointed out
that the ITT staff responsible for having placed the applicant in the cell with
convicted criminals and thus having exposed him to the risk of ill-treatment had
been disciplined. Furthermore, the Government noted that the applicant had been
awarded reasonable compensation in respect of the above complaints concerning
both his ill-treatment by a cellmate and the conditions of his detention. They
relied in this connection on the judgment of the Yevpatoriya Court of 7 April
2005 (see paragraph 73 above).
The applicant disagreed in general terms. He
maintained his position also later on, in the light of the ruling of the Higher
Specialised Civil and Criminal Court of 14 March 2012, which he sent to the
Court in May 2012 (see paragraphs 75-76 above).
The Court reiterates that an applicant is
deprived of his or her status as a victim if the national authorities have
acknowledged, either expressly or in substance, and then afforded appropriate
and sufficient redress for, a breach of the Convention (see, for example, Scordino
v. Italy (no. 1) [GC], no.
36813/97, §§ 178-193, ECHR 2006-V).
Turning to the present case, the Court notes
that the applicant’s complaints concern the following two issues: firstly, the
material conditions of his detention and, secondly, his ill-treatment by a
cellmate while in detention. The Court will examine whether the applicant can
be regarded as having lost his victim status in respect of each of these two
complaints.
1. Victim status as regards the conditions of
detention
The Court observes that by the final judicial
decision of 14 March 2012 the domestic authorities admitted that the applicant
had suffered inhuman and degrading treatment on account, in particular, of the
poor conditions of his detention in cell no. 12 of the Yevpatoriya ITT, which
is also the subject matter of his application before this Court. The domestic
courts assessed various aspects of the conditions in which the applicant had
been detained and their cumulative effects on him (see paragraphs 73 and 75-76
above and, see also Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
The Court is therefore satisfied that the authorities have acknowledged a violation
of Article 3 of the Convention on that account.
It remains to be seen whether appropriate and
sufficient redress was provided to the applicant at national level. In
assessing this, the Court will have regard to all the circumstances of the case,
taking into account, in particular, the nature of the Convention violation at
stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).
The Court observes that in the present case the
domestic courts awarded the applicant compensation equivalent to about EUR
2,230 in respect of the non-pecuniary damage he suffered on account of his
detention in substandard conditions during a period of about two weeks. This
compensation also covered his wrongful confinement in the same cell as convicted
criminals, which had led to his having been beaten up by a cellmate (see paragraphs
73 and 75-76 above).
The Court reiterates that the question whether
the applicant received compensation comparable to just satisfaction as provided
for under Article 41 of the Convention for the damage caused by the ill-treatment
contrary to Article 3 is an important indicator for assessing whether a breach
of the Convention has been redressed (see Shilbergs v. Russia, no. 20075/03, § 72, 17 December 2009, and, mutatis
mutandis, Gäfgen, cited above, §§ 126-127).
At the same time, the Court notes that
compensation which is lower than the amount it would itself award may
nevertheless be considered reasonable, provided that the relevant decision of
the domestic courts is consonant with the legal tradition and standard of
living in the country concerned and is speedy, reasoned and executed quickly
(see Scordino, cited above, §§ 189 and 206, and Dubjakova v.
Slovakia (dec.), no. 67299/01, 19 October 2004).
As regards the present case, the Court considers
that the amount of the compensation awarded to the applicant could be regarded
as reasonable if it covered only the conditions of detention. However,
according to the judgment of 18 November 2008, it also covered the
ill-treatment sustained by the applicant.
Further the Court notes certain delays in the
examination of the case caused, in particular, by its remittal to the
first-instance court and the lengthy examination of the cassation appeal. It
remains unknown whether the judgment awarding compensation has been enforced.
Consequently, having regard, in particular, to
the much delayed adjudication of the applicant’s complaint regarding his poor detention
conditions, the Court concludes that he cannot be regarded as having obtained
appropriate and sufficient redress in that respect (see, by contrast, Iliev and Others v. Bulgaria, nos. 4473/02 and
34138/04, § 43, 10 February 2011).
. In the light of the foregoing, the
Court dismisses the Government objection that the applicant has lost his victim
status in respect of his complaint concerning the conditions of his detention.
2. Victim status as regards the authorities’ failure
to safeguard the applicant’s physical safety
The Court notes that the question whether the
applicant in the present case may still claim to be a victim as regards his
complaint of ill-treatment in the detention facility on 27 April 2004, is
closely linked to the substance of his complaint regarding the effectiveness of
the subsequent investigation into the matter. The Court therefore joins this
issue to the merits of that complaint (see Vladimir Romanov v. Russia,
no. 41461/02, § 53, 24 July 2008). The adequacy of the subsequent
compensation will also be assessed at that stage (see Aleksakhin v. Ukraine,
no. 31939/06, § 60, 19 July 2012).
3. Otherwise as to admissibility
The Court further notes that these complaints
are not otherwise manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention and are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. As regards the applicant’s conditions of detention
The applicant maintained his complaint in
general terms.
Referring to their objection as to the
applicant’s victim status, the Government did not submit any observations on
the merits of this complaint.
The Court notes from the outset that the
applicant spent a total of not more than two weeks in inadequate conditions (see
paragraphs 66-71 above). A question may therefore arise as to whether the
distress and hardship suffered by him attained the minimum threshold of
severity for the purposes of Article 3 of the Convention.
The Court observes that conditions of detention
for a comparable and even a much shorter period have been previously found to
be incompatible with the requirements of Article 3 (see, for example,
Fedotov v. Russia, no. 5140/02, §§ 66-70, 25 October 2005, where the
applicant was detained for twenty-two hours with no food and water or access to
a toilet; Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§
100-111, 24 January 2008, where the applicants were detained in poor
conditions for periods of fifteen and eleven days; and Mkhitaryan v. Armenia,
no. 22390/05, § 55, 2 December 2008, where the length of the impugned
detention was ten days). The Court thus concludes that, while the length of a
period of detention may be a relevant factor in assessing the gravity of
suffering or humiliation caused to a detainee by the inadequate conditions of
his detention (see, for example, Dougoz, cited above, § 48, and
Kalashnikov v. Russia, no. 47095/99, § 102, ECHR 2002-VI), the
relative brevity of such a period alone will not automatically exclude the
treatment complained of from the scope of Article 3 if all other elements are
sufficient to bring it within the scope of that provision (see Mkhitaryan,
cited above, § 55).
Having regard to the nature of the hardships
suffered by the applicant in the present case, in particular, the overcrowding,
lack of natural light, appalling sanitary conditions, lack of an individual
place to sleep and no outdoor walks or other activities, and noting that he was
subjected to these conditions just having been discharged from hospital, the
Court considers that the minimum threshold of severity for the purposes of Article 3
of the Convention was attained.
The Court further notes that it has already
found a breach of this provision in respect of the conditions in which another
detainee was held in the same detention facility during more or less the same
period of time (see Tsygoniy v. Ukraine, no. 19213/04, §§ 45-47, 24 November 2011).
. In the light of the foregoing, the
Court concludes that there has been a violation of Article 3 of the Convention
on account of the conditions of the applicant’s detention in cell no. 12 of the
Yevpatoriya ITT.
2. As regards the beating of the applicant in the
Yevpatoriya ITT
(a) The authorities’ duty to ensure the applicant’s safety
in detention
The applicant submitted that the authorities
had knowingly put him at risk of physical violence at the hands of his
cellmates by having placed him, contrary to the national legal requirements, in
the same cell with convicted criminals.
The Government did not comment on the merits of
this complaint.
The Court notes that the principal facts of the
case were not disputed by the parties. In particular, it was established that
the applicant had been beaten by a cellmate shortly after his confinement in
cell no. 10 of the Yevpatoriya ITT. As a result, he sustained the following
injuries: concussion, hematomas beneath the eyelids, bruising to the left
superciliary arch, bruises to the facial soft tissue, bruises to the tongue, injuries
to both ears, bruises to the nose, and bruises to the soft tissue of the chest
and lumbar region (see, in particular, paragraphs 48 and 54 above).
These injuries are a sufficient indication for
the Court that the applicant suffered ill-treatment attaining the minimum
threshold of severity for Article 3 of the Convention to apply.
The Court reiterates that Article 3 of the
Convention imposes an obligation on the Contracting States not only to refrain
from causing ill-treatment, but also to take the necessary preventive
measures to preserve the physical safety and well-being of persons deprived of
their liberty who find themselves in a vulnerable position by virtue of being under
the control of the authorities (see
Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001-III, Mouisel
v. France, no. 67263/01, § 40, ECHR 2002-IX, and Premininy v.
Russia, no. 44973/04, § 73, 10 February
2011).
At the same time the Court has consistently
interpreted that obligation in such a manner as would not impose an impossible
or disproportionate burden on the authorities (see Pantea
v. Romania, no. 33343/96,
§ 189, ECHR 2003-VI).
Turning to the present case, the Court observes that the Ukrainian legislation on pre-trial
detention provided for certain requirements for confinement in isolation aimed
at preserving the safety of detainees: in particular, persons facing criminal
proceedings for the first time were to be detained separately from those with a
criminal record, and, furthermore, persons who had previously worked in the court
service (such as the applicant in the present case) were to be isolated from
other detainees (see paragraph 78 above).
. As established by the domestic
courts, neither of these precaution requirements was complied with in the
applicant’s case. The authorities failed to ensure his safety and were
therefore responsible for his ill-treatment by a cellmate (see paragraphs 73-76
above).
. Accordingly, there has been a
violation of Article 3 of the Convention in this regard.
(b) Effectiveness of the domestic investigation
The applicant maintained his complaint in
general terms.
The Government contended that the authorities
had thoroughly investigated the incident involving the applicant, had acknowledged
their failure to take action and had brought all those responsible to justice.
The Court reiterates that when an individual
makes an arguable claim that he has suffered treatment infringing Article 3 of
the Convention, at the hands of agents of the State, it is the duty of the
national authorities to carry out “an effective official investigation” capable
of establishing the facts and identifying and punishing those responsible (see Okkalı
v. Turkey, no. 52067/99, § 65, ECHR 2006-XII. Such a positive
obligation cannot be considered, in principle, to be limited solely to cases of
ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, §
151, ECHR 2003-XII).
At the same time, this obligation does not
necessarily require the provision of a criminal law remedy in every case (see Ciechońska
v. Poland, no. 19776/04, § 66, 14 June 2011). Thus, compensation
for non-pecuniary damage should, in principle, be part of the range of
available remedies if the infringement of the right to personal safety is not
caused intentionally or in cases which do not concern the inflicting of ill-
treatment contrary to Article 3 of the Convention, but rather a failure by
the authorities to protect persons from a breach of their rights under this
provision. This consideration, however, by no means diminishes the duty to
investigate, particularly where an applicant is in custody and under the care
and responsibility of the authorities (see Gorgiev v. “the former Yugoslav Republic of Macedonia”, no. 26984/05, §§ 62 and 64, 19 April 2012).
. The
investigation into serious allegations of ill-treatment must be thorough. This means that the authorities must always
make a serious attempt to find out what happened and should not rely on hasty
or ill-founded conclusions to close their investigation or as the basis
for their decisions (see Assenov and Others v. Bulgaria, 28
October 1998, §§ 103 et seq., Reports of Judgments
and Decisions 1998-VIII). They must take all
reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93,
§ 89, 14 December 2000). Any deficiency in the investigation which undermines
its ability to establish the cause of injuries or the identity of those
responsible will risk falling foul of this standard.
In the present case, the Court discerns a
number of deficiencies undermining the effectiveness of the domestic
investigation. For example, it notes the steps taken by the ITT administration
immediately after the incident. While cleaning up the spilt blood in the cell
was an understandable measure to maintain standards of hygiene, it appears that
no attempts were made to secure any forensic evidence at all. The least that
could reasonably be expected from the administration would have been to carry
out an inspection of the scene and to make a report about its findings. No such
report is known to have been produced.
Furthermore, given the closed cell environment
in which the incident had taken place, it was also essential to question the
eyewitnesses without delay, with safeguards in place to protect them from being
influenced or intimidated. However, such questioning was apparently only undertaken
almost a year after the incident (see paragraph 46 above).
The Court is also struck by the administration’s
decision to put the applicant immediately back into the cell where he had
suffered ill-treatment, while his transfer to hospital was being organised (see
paragraph 49 above). He was put at risk of both a repeat of the ill-treatment
and of intimidation as a result of complaints he may have made.
The risk of the applicant’s intimidation by his
cellmates persisted during his stay in hospital, when he had to share his ward
with one of those cellmates, Mr D. (ibid.).
Although the applicant pointed out those deficiencies
to the domestic prosecution and judicial authorities, his concerns apparently
remained unaddressed.
The Court also observes that the investigation
was discontinued and subsequently resumed three times (see paragraphs 37, 39-40
and 43-44 above), which in itself may be regarded as an indication of deficiencies
in the domestic prosecution system (see Aleksandr Smirnov v. Ukraine,
no. 38683/06, § 61, 15 July 2010).
. The Court notes that the inmate who
had beaten the applicant was convicted (see paragraph 48 above). As to the ITT
officials, they were eventually disciplined for having put the applicant in the
same cell as other detainees, including convicted criminals. The Court doubts that
this reprimand issued to staff members who apparently had no practical means to
act differently, was, in fact an effective measure. It was already known that
the ITT was overcrowded and that it had not been possible to comply with the
requirements for the isolation of some detainees under the applicable
legislation (see paragraphs 41 and 49 above).
In the light of all these circumstances, the
Court is not convinced that the domestic authorities acted promptly and in good
faith or that they took all reasonable efforts to establish what exactly had
happened to the applicant within the walls of the detention facility and why,
and to bring those responsible to justice.
(c) Adequacy of compensation in respect of the
applicant’s ill-treatment
As to the compensation which was eventually
awarded to the applicant, the Court observes that it was equivalent to about
EUR 2,200 and was intended to compensate for the damage the applicant had
suffered in respect of both the inadequate conditions of his detention and his
exposure to the risk of ill-treatment (see paragraphs 75 and 95 above). While
that amount could be regarded as sufficient redress for the poor conditions of
his detention, the Court does not consider that it was adequate compensation
for the ill-treatment suffered as a result of both the general prison
conditions and the specific incident of physical violence while the applicant
was under the authorities’ control.
(d) Conclusions
The above considerations are sufficient to
enable the Court to conclude that the applicant can still claim to be a victim
of a violation of Article 3 with regard to the beating he suffered at the hands
of his cellmate on 27 April 2004. It therefore dismisses the Government’s
objection previously joined to the merits of this complaint in this regard (see
paragraph 99 above).
In view of the foregoing, the Court finds that
there has been a violation of Article 3 of the Convention on account of the
authorities’ failure to ensure the applicant’s safety in detention and to duly
investigate the incident.
II. ALLEGED
VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S
handcuffing in hospital
The applicant also complained under Article 3
of the Convention about being handcuffed to his bed from 27 April to 13 May
2004, while in the city hospital.
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 submitted that the handcuffing he
had undergone while in hospital had been unlawful, unjustified and humiliating.
The Government contended that the applicant had
been handcuffed in compliance with domestic legislation and that it had been a
necessary measure given the applicant’s attempts to leave the hospital ward, as
well as the attempts of his supporters to enter it.
The Court notes that handcuffing does not
normally give rise to an issue under Article 3 of the Convention where the
measure has been imposed in connection with lawful detention and does not
entail the use of force, or public exposure, exceeding what is reasonably
considered necessary. In this regard, it is important to consider, for
instance, the danger of the person’s absconding or causing injury or damage
(see Raninen v. Finland, 16 December 1997, § 56, Reports 1997-VIII,
and Hénaf v. France, no. 65436/01, §§ 50-53, ECHR 2003-XI).
Turning to the present case, the Court notes
that the applicant was continuously handcuffed throughout his sixteen-day stay
in hospital, with some brief respite. According to the Government’s
submissions, this was necessitated, in particular, by his supposedly numerous
attempts to leave the hospital ward, as well as the attempts of his supporters
to enter the ward (see paragraph 136 above). The Court is not convinced by this
explanation. As suggested by the facts of the case (namely, the applicant’s
admission to the hospital late in the evening on 27 April 2004 and the fact
that he was handcuffed on that very date), the applicant was restrained from
the very outset of his stay there and not following any attempt to escape.
Having regard to these circumstances, the Court finds it difficult to imagine
how the applicant could have undertaken “numerous attempts” to escape while
shackled to his bed. The Government’s submission in that respect lacks supporting
evidence.
The Court further notes that the applicant was
guarded by three police officers at all times, the windows of his ward were
barred and the door was equipped with a lock. These measures appear largely sufficient
to prevent the applicant’s escape, as well as any unauthorised visits to him.
The Court also notes that at no point was it asserted that the applicant had behaved
aggressively towards the hospital personnel or the police, posed a threat to
his own safety or been likely to commit suicide.
In these circumstances the Court considers that
the handcuffing of the applicant in the hospital was disproportionate to the requirements
of security and an unjustifiable humiliation, whether or not intentional. It
thus amounted to inhuman and degrading treatment.
There has therefore been a violation of Article
3 of the Convention on this account too.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN RESPECT OF THE MEDICAL TREATMENT PROVIDED TO THE APPLICANT
The applicant also complained under Article 3
of the Convention about the alleged inadequacy of the medical care he had
received following the incident of 27 April 2004. He submitted that his
hospitalisation had not been prompt enough and that his treatment had not been
sufficiently thorough.
The Court notes that the applicant was taken to
a civilian hospital from the SIZO about three hours after the incident in
question (see paragraphs 35 and 54 above). There is no indication that
this delay was so significant that to have impaired his treatment.
The Court next observes that the applicant
underwent inpatient medical treatment for his condition, which included mainly bruises,
concussion and an ear inflammation, in the Yevpatoriya City Hospital for sixteen days. The doctors involved in his treatment included a neurosurgeon, the
head of the ear, nose and throat department, a dental surgeon, and an eye
surgeon, as well as the heads of the cardiology, urology and traumatology
departments (see paragraph 55 above).
On the day of the applicant’s discharge from
the hospital, 13 May 2004, his wife wrote to the Court that his health was
deteriorating and insisted on the necessity of his medical treatment in a
hospital setting as an interim measure to be applied under Rule 39 of the Rules
of Court. This request was allowed on the following day. The Court notes that
the Ukrainian authorities ensured the applicant’s medical examination in a
hospital setting on the very day when the aforementioned interim measure was
indicated (see paragraphs 57-60 above). Given that doctors specialising in
various areas of medicines concluded that there was no need for his inpatient
medical treatment, the Court lifted the interim measure on 5 July 2004
(see paragraph 62 above).
The Court reiterates that it is not in a
position to speculate on the adequacy of the medical treatment prescribed to
the applicant in the civil hospitals (see Okhrimenko v. Ukraine, no. 53896/07, § 71, 15 October 2009).
. In the present case it appears that
the applicant was provided with prompt and comprehensive medical supervision
and treatment.
. The Court therefore rejects this
complaint as being manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
Relying on Article 5 § 1 of the Convention, the
applicant complained that his initial confinement in custody, as well as his
continued detention thereafter, had been without legal basis or justification.
He further complained, relying on Article 6 §§ 1 and 3 (b) and (c) of the
Convention, that the court had ordered his pre-trial detention at a hearing attended
by the prosecutor but not his own representative. He also complained, under
Article 5 §§ 3 and 4 of the Convention, that his appeal against the detention
order had been examined only after an unreasonable delay.
Being master of the characterisation to be
given in law to the facts of the case and having regard to the substance of the
applicant’s complaints, the Court decides to examine them as follows:
- the complaints concerning the lack of relevant
and sufficient reasons given by the domestic courts for the applicant’s remand
in custody and continued pre-trial detention, under Article 5 §§ 1 and 3 of the
Convention (see, for example, Khayredinov v. Ukraine, no. 38717/04, §§ 29-31 and 41-43, 14 October
2010);
- the complaint regarding the alleged unfairness
of the detention hearing on 27 April 2007, falling also to be examined under
this provision as pertaining to the procedure by which the applicant was
“brought before a judge” (see Lebedev v. Russia, no. 4493/04, §§ 74-77,
25 October 2007); and lastly,
- the complaint regarding the lack of speediness of
the appellate review, to be examined under Article 5 § 4 of the
Convention.
Article 5 of the Convention provides, as far as
relevant:
“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
1. Fairness of the procedure by which the applicant
was “brought before a judge”
The Government submitted that the applicant had
taken part in the detention hearing on 27 April 2004. They emphasised that he
was himself a lawyer and therefore the presence of his representative had not
been essential for equality of arms between the prosecution and the defence.
The applicant maintained that the absence of
his representative had rendered the procedure by which he was “brought before a
judge” unfair.
The Court considers that the applicant had the
requisite legal qualifications to plead his own case at the hearing, while it
is unclear whether his wife, whose admission he had unsuccessfully sought, had
any legal background.
Having regard to all the material before it,
the Court does not discern any unfairness in the court hearing at issue on account
of the absence of the applicant’s representative.
It follows that this complaint must be rejected
as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
2. Other complaints
The Court notes that the remaining complaints under
Article 5 §§ 1, 3 and 4 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. Complaint under Article 5 §§ 1 and 3 of the
Convention
The applicant maintained there had been no reasons
for placing and keeping him in pre-trial detention.
The Government argued that the applicant’s
detention had been based on judicial decisions taken in compliance with the
domestic law. They noted that the applicant had not obeyed the order not to
leave town imposed on him earlier and that he had threatened the victim, Mr. K.
Therefore, his detention had been justified.
According to the Court’s case-law,
justification for any period of detention, no matter how short, must be
convincingly demonstrated by the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004, and Castravet v. Moldova, no.
23393/05, § 33, 13 March 2007). The Court has held that a further function of a
reasoned decision is to demonstrate to the parties that they have been heard. While Article 5 of the Convention does not impose an obligation on a judge
examining an appeal against detention to address every argument contained in
the appellant’s submissions, its guarantees would be deprived of their
substance if the judge, relying on domestic law and practice, could treat as
irrelevant, or disregard, concrete facts invoked by the detainee which would be
capable of casting doubt on the “lawfulness” of the deprivation of liberty (see
Ignatenco v. Moldova, no. 36988/07, §§ 77-78, 8 February 2011, with further
references).
. Turning to the present case, the
Court notes that the Saky Court decided to remand the applicant in
custody even though such a strict measure was not normally applied in similar cases
(see paragraph 16 above). The justification advanced by the prosecution and accepted
by the court was the applicant’s supposedly inappropriate behaviour during the
pre-trial investigation: namely, his failure to appear on summons, his living
at an address different from that declared, his leaving the town without
authorisation, and his threats to the victim, Mr. K. The Court notes that the
applicant’s sick-leave certificate stating his inability to work and thus his
inability to participate in the investigation was not considered. As to threats
he had supposedly made to the victim, their existence appeared to be based
solely on the latter’s statement, the court decision not having been supported
by any evidence in that regard. The same holds true for the court’s findings
concerning some unauthorised trips made by the applicant; no details of these
were referred to, even summarily, in the ruling.
In summary, the Court considers that the
reasoning advanced by the domestic courts for the applicant’s deprivation of
liberty on 27 April 2004 was couched in general terms and failed to have regard
to his concrete and relevant argument against this exceptionally strict, in his
circumstances, preventive measure.
Furthermore, there is nothing in the case file to
show that this reasoning evolved with the passage of time and that the
applicant’s continued detention thereafter, until his release on 1 October
2004, was duly justified (see paragraphs 24-26 above).
The Court therefore concludes that there has been
a violation of Article 5 §§ 1 and 3 of the Convention in this regard.
2. Complaint under Article 5 § 4 of the Convention
The Court notes that the appeal by the
applicant’s representative about the applicant’s having been taken into custody
was lodged with the Crimea Court of Appeal on 27 April 2004 and examined on 1 June
2004, that is, one month and five days later.
. In
the Court’s opinion, the issues raised before the appellate court were not
overly complex. Nor is there anything in the material before the Court to
suggest that either the applicant or his representative contributed to the
length of the appeal proceedings. In fact, the entire length of the appeal
proceedings was attributable to the authorities. The Court reiterates that
where an individual’s personal liberty is at stake, it has very strict
standards concerning the State’s compliance with the requirement of a speedy review
of the lawfulness of the detention (see, for example, Kadem v. Malta, no. 55263/00,
§§ 44-45, 9 January 2003, where the Court considered excessive a period of
seventeen days to decide on the lawfulness of the applicant’s detention
excessive, and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting twenty-six days was found to be
in breach of the “speediness” requirement of Article 5 § 4).
167. The Court therefore considers that
the length of the appeal proceedings for the review of the lawfulness of the
applicant’s pre-trial detention is not compatible with the “speediness”
requirement of Article 5 § 4 of the Convention. There has been a violation
of that provision.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained under Article
3 of the Convention, as well as with reference to Article 13, that the domestic
authorities had not given due attention to his various complaints. He next
complained that the court rulings of 27 April and 7 July 2004 had been contrary
to the requirements of Article 6 § 2 of the Convention. He also complained
under Article 6 § 3 (c) that his wife had been banned from representing him
from 27 April to 19 May 2004. Furthermore, the applicant complained that the
Crimea Court of Appeal had failed to question all the defence witnesses on 1
June 2004. Lastly, he complained that his conviction had been unfair.
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 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.
VI. 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 50,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested the claim as excessive
and irrelevant.
The Court considers that the applicant suffered
non-pecuniary damage which cannot be compensated for by the mere finding of a
violation of his Convention rights. Having regard to the circumstances of the
case, including the domestic award of compensation to the applicant, and ruling
on an equitable basis, as required by Article 41, the Court awards him
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. Decides to join to the merits the
Government’s objection as to the applicant’s victim status in respect of his
complaint under Article 3 of the Convention concerning the authorities’ failure
to ensure his safety in detention, and dismisses it after having examined the
merits of that complaint;
2. Declares the complaints concerning the
conditions of the applicant’s detention, the failure of the authorities to
protect him from the violence of the other detainees, the ineffectiveness of
the domestic investigation into the incident, the applicant’s handcuffing in
hospital, as well as the complaints concerning the alleged unlawfulness and
length of his pre-trial detention and the lack of its speedy judicial review
admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the applicant’s
detention in cell no. 12 of the Yevpatoriya ITT;
4. Holds that there has been a violation of
Article 3 of the Convention on account of the authorities’ failure to ensure
the applicant’s safety in detention;
5. Holds that there has been a violation of
Article 3 of the Convention on account of the ineffectiveness of the domestic
investigation into the applicant’s ill-treatment in the Yevpatoriya ITT;
6. Holds that there has been a violation of
Article 3 of the Convention on account of the applicant’s handcuffing in
hospital;
7. Holds that there has been a violation of
Article 5 § 1 of the Convention on account of the applicant’s remand in
custody on 27 April 2004;
8. Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the applicant’s continued
pre-trial detention;
9. Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the lack of speedy judicial
review of the lawfulness of the applicant’s detention;
10. Holds
(a) that
the respondent State is to pay the applicant, within three months from 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 at 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;
11. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
