FIFTH SECTION
CASE OF
KOBERNIK v. UKRAINE
(Application no.
45947/06)
JUDGMENT
STRASBOURG
25 July 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 Kobernik v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 2 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
45947/06) 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 Aleksey Leonidovich Kobernik (“the
applicant”), on 31 October 2006.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr N. Kulchytskyy.
The applicant alleged, in particular, that the conditions
of his detention and transportation were contrary to Article 3 of the
Convention, that the length of pre-trial detention was not compatible with Article
5 § 3 of the Convention, and that the criminal proceedings did not comply with
the “reasonable time” requirement under Article 6 § 1 of the Convention.
On 1 February 2011 the application was declared
partly inadmissible and the above complaints were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971.
A. Criminal proceedings against the applicant
On 13 May 1999 criminal proceedings were
instituted against the applicant and five other persons in connection with a
murder. On the same day charges were drawn up against the applicant. As his
whereabouts were unknown, the authorities decided to place him on the list of
wanted persons and issued an order for preventive remand in custody.
On 21 May 1999 the applicant was arrested. Subsequently,
he was charged with membership of an armed gang, murders, extortion, and keeping
firearms and ammunition without a permit. A number of his alleged accomplices
were also arrested and charged.
According to the Government, during the pre-trial
investigation the authorities took more than 490 investigative actions in order
to establish all the facts relevant for the criminal case.
Following completion of the investigation, on 17
April 2001 a local court received the case file from the investigation
authorities.
On 5 June 2001 the case was allocated to the
Supreme Court of the Autonomous Republic of Crimea (subsequently renamed the
Court of Appeal of the Autonomous Republic of Crimea, and hereafter “the Court
of Appeal”) for consideration on the merits.
On 25 June 2001 the Court of Appeal committed
the applicant and fourteen other defendants for trial, and scheduled the next
hearing for 30 July 2001.
On 30 July 2001 the hearing was adjourned because
one of the defendants, some victims and lawyers failed to appear.
On 6 August and 3 and 5 September 2001 hearings
were adjourned owing to the failure of some lawyers to appear.
On 11 September 2001 the Court of Appeal
established the identity of the defendants and read out the bill of indictment.
The next hearing was scheduled for 13 September 2001.
On 13 September 2001 the Court of Appeal
adjourned the proceedings, following a request by one of the defendants for the
hearings to be recorded, for which the technical means were not available at
the time.
The next hearing was scheduled for 9 July 2002,
but on that day the Court of Appeal adjourned it, as one of the defendants and
two lawyers had failed to appear.
On 11 July 2002 the Court of Appeal resumed
consideration of the case.
Between 29 July and 22 October 2002 several hearings
were postponed, as the lawyers of certain defendants could not be present.
On 12 November 2002 the Court of Appeal postponed
the hearing till 24 February 2003, because one of the lay judges had to deal
with another case until that date.
Between 18 March and 10 September 2003 no hearings
were held, as one of the lay judges was ill.
On 15 December 2003 the Court of Appeal remitted
the case for additional investigation, upholding the custodial preventive
measure in respect of the applicant after noting that there had been no grounds
for changing the measure. The court found, inter alia, that the charges
against the applicant and the other defendants had been vague and lacked
appropriate substantiation. The decision was appealed against by the
prosecution.
On 8 May 2004 the Supreme Court quashed the
decision of 15 December 2003 and remitted the case to the Court of Appeal
for trial.
The next hearing in the case took place on 28
February 2005; previous hearings had been adjourned because some defendants and
lawyers had failed to appear.
A number of later hearings also had to be
adjourned for various reasons, including failure to appear by defendants,
witnesses, victims, and lawyers, and also because of power cuts.
On 22 May 2006 the Court of Appeal found, among
other things, that the applicant was guilty of the above-mentioned crimes and
sentenced him to fifteen years’ imprisonment with confiscation of his property.
The Court of Appeal also convicted fourteen other defendants. According to the
Government, that judgment was passed after the Court of Appeal had held 105 hearings,
during which it had questioned the defendants and numerous witnesses, examined
the evidence in the file and considered various requests submitted in the
course of the trial.
The applicant appealed on points of law.
On 5 April 2007 the Supreme Court partly quashed
the conviction of the applicant on the charge of keeping firearms and
ammunition without a permit. It upheld the remainder of the conviction as
substantiated and confirmed the sentence.
B. Conditions of detention
On 14 June 2007 the applicant was transferred to
the Lugansk Pre-Trial Detention Facility (“the Lugansk SIZO”) where he
was held until 9 July 2007.
According to the applicant, in that facility he was
held in a cell measuring about 15 sq. m, which was located in a
semi-basement. The overall number of detainees ranged from fifteen to twenty.
The number of bunks was insufficient and the detainees had to take turns to
sleep. Some of the detainees were infected with tuberculosis. The toilet in the
cell was dirty and offered no privacy. The sewerage system repeatedly broke
down and the corridor was periodically flooded with waste water. There were two
small windows and no ventilation. The walls of the cell were covered with
mould. There were no mattresses or pillows. The laundry facilities were out of
order. The nutrition was inadequate. The rubbish bins were located three metres
from the outer wall of the cell and a bad smell penetrated from outside. Flies
and cockroaches abounded.
According to the Government, the applicant was
held in cell no. 5, which measured 17.7 sq. m. The cell was equipped with fifteen
bunks, a bench and a table. The cell had not been overcrowded as it had never
been occupied by more than fifteen detainees. Between 19 June and 9 July 2007 the
cell had been usually occupied by thirteen detainees. None of the inmates was suffering
from any serious illness. The toilet in the cell was separated by a plywood
partition of 1.5 m in height. There were several breakdowns of the sewerage
system which were quickly repaired. There were two windows which allowed sufficient
daylight to enter and provided ventilation for the cell. The applicant was
provided with bed linen, a mattress and a pillow. He was able to have a shower
every seven days. Nutrition was provided in accordance with domestic standards.
Rubbish bins were kept in a special yard with a fence. Overall, the sanitary
and hygienic conditions were adequate.
C. Conditions of transport in 2007
According to the applicant, on 14 June and 9
July 2007 he was transported in overcrowded railway carriages and vehicles. For
railway transportation, the overall number of detainees in each compartment
ranged from twelve to fifteen. The compartments were not ventilated, even
though the weather was hot. For transportation by road, the applicant and
another twenty detainees were packed into a special vehicle, which heated up in
the sun and did not provide sufficient space or ventilation.
II. RELEVANT DOMESTIC LAW
The relevant domestic law
can be found in the judgment in the case of Dvoynykh
v. Ukraine (no. 72277/01, §§ 31-37, 12 October
2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in the Lugansk SIZO and those under which he was transported in June
and July 2007 were incompatible with Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or
to inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
failed to exhaust domestic remedies in respect of this part of the application.
In particular, the applicant should have applied to the courts or raised these
issues before the prosecutor. As an
example of the practical effectiveness of the judicial remedy, the Government
referred to the domestic court’s decision of 4 February 2009, in which the claimants
were awarded compensation in allegedly similar circumstances. They did not
provide a copy of that decision.
The Government further maintained that these
complaints had not been properly developed or substantiated by the applicant,
and therefore should be rejected as manifestly ill-founded.
The applicant alleged that he had had no
effective remedies to exhaust. He further insisted that his complaints under
Article 3 of the Convention were well-founded and could not be rejected as
inadmissible.
2. The Court’s assessment
(a) Conditions of transportation
With respect to the applicant’s complaint
concerning the conditions of transportation in 2007, the Court observes that it
is not necessary to decide on the Government’s objections since this complaint
is in any event inadmissible. It notes that the applicant
did not provide a detailed account of those issues. In particular, he did not
elaborate on the size of the compartment and the actual duration of the trip. His
submissions are vague and brief and do not provide a sufficient basis to
conclude that the relevant treatment reached the threshold required by Article
3 of the Convention (see, mutatis mutandis, Visloguzov v. Ukraine, no. 32362/02, § 49, 20 May 2010). This
complaint should therefore be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
(b) Conditions of detention
As regards the applicant’s complaint concerning the
conditions of his detention in the Lugansk SIZO, the Court first notes that
similar objections by the Government under the rule of exhaustion of domestic
remedies have previously been dismissed as unfounded in a number of cases (see,
for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko
v. Ukraine, no. 15825/06, §§ 75-76, 25 October 2007; Koktysh v. Ukraine,
no. 43707/07, § 86, 10 December 2009;
Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010; Iglin
v. Ukraine, no. 39908/05, §
43, 12 January 2012; and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30 and 31,
16 February 2012). As regards the Government’s additional contention that the domestic
court’s decision of 4 February 2009 was evidence of the efficiency of the judicial
remedy, the Court notes that a copy of that decision has not been provided.
Moreover, it appears that the Government are referring to the decision which
has been examined by the Court in the same context and found to be of no
relevance for the issue of exhaustion of domestic remedies since it was a single example of successful litigation in a case in which a
violation had previously been found by this Court (see Petukhov v. Ukraine, no. 43374/02, § 74-78, 21 October 2010, and Ustyantsev v. Ukraine, no. 3299/05, §§ 56-58, 12 January 2012). In sum, there
is no ground to assume that in the present case the use of the remedies
mentioned by the Government could effectively address the applicant’s issues.
The Court therefore does not see any reason to depart from its previous
approach, and dismisses the Government’s objection.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
Relying on their account of the conditions of
the applicant’s detention, the Government submitted that they complied with the
requirements of Article 3 of the Convention.
The applicant disagreed and maintained his
complaint. He challenged the Government’s submissions as factually incorrect.
The Court reiterates that ill-treatment
must attain a minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. In accordance with this provision, the State must
ensure that a person is detained in conditions which are compatible with
respect for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention, and that
given the practical demands of imprisonment, his health and well-being are
adequately secured (see Visloguzov v. Ukraine, no. 32362/02, §§ 56 and 57, 20 May 2010, with further
references). The length of a period of detention may be a relevant factor in
assessing the gravity of the suffering or humiliation caused to a detainee by
the inadequate conditions of his detention. However, 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 v. Armenia, no. 22390/05, § 55, 2 December 2008).
The Court notes that that
the length of the applicant’s detention in the Lugansk SIZO was twenty-five
days. It further notes that the parties disagreed as to some aspects of the
conditions in which the applicant was detained during that period. In
particular, the Government disputed the applicant’s submissions about
overcrowding in the cell. They maintained that the cell in fact measured 17.7
sq. m, and that during the period under examination the overall number of
detainees held therein did not exceed fifteen persons while between 19 June and
9 July 2007 the cell was usually occupied by thirteen detainees. The Government’s
figures therefore suggest that for most of the period of the applicant’s
detention there was less than 1.5 square metres of space
per inmate in the applicant’s cell. For the Court those figures indicate
that the applicant was held in a severely overcrowded
cell (see, for example, Yakovenko, cited above, § 84, and G.O. v. Russia, no. 39249/03, § 69, 18 October 2011). Moreover,
the Court is mindful of the fact that the cell contained
some furniture and fittings, such as bunks, a table, a bench and a toilet,
which must have further reduced the floor area available to the applicant.
The Court also notes that the Government did not
refute the applicant’s allegations that the toilet was not properly separated
from the other parts of the cell and that the ventilation in the cell was
inadequate. Likewise, the Government’s admission that the sewerage system had
broken down several times gives more weight to the
applicant’s contention that the sanitary conditions were unsatisfactory.
. The
foregoing considerations are sufficient for the Court to conclude that the
physical conditions of detention of the applicant in the Lugansk SIZO amounted
to degrading treatment in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant next complained that the length of
his pre-trial detention had been excessive. He relied on Article 5 § 3 of the
Convention, which reads as follows:
“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.”
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
1. Submissions by the parties
The applicant insisted that the overall length
of his pre-trial detention had been excessive.
The Government contended that the charges
against the applicant were very serious, and there had been a real risk that
the applicant would abscond, impede the investigation and continue his criminal
activities. In the opinion of the Government there had been sufficient and
relevant reasons to keep the applicant in custody for the whole period of the investigation
and trial.
2. The Court’s assessment
The Court notes that the period to be taken into
account commenced on 21 May 1999 (the date of the applicant’s arrest) and ended
on 22 May 2006 (the date when the applicant was convicted pursuant to the
judgment of the first-instance court). It therefore lasted over seven years.
51. Having
regard to the general principles established in its case-law (see I.A. v. France, judgment of 23 September 1998, Reports
of Judgments and Decisions 1998-VII, § 102; Labita v. Italy [GC],
no. 26772/95, § 153, ECHR 2000-IV; and Iłowiecki
v. Poland, no. 27504/95, § 61, 4 October 2001), the Court notes that the
period of the applicant’s detention before conviction was particularly long.
The Court accepts the Government’s view that the charges against the applicant
were very serious, as he was charged with membership of an armed gang,
murder and other crimes. However, regard being had to
the length of the applicant’s detention, the Court considers that the competent
authorities should also have expressly adduced other reasons justifying holding
him in custody during the entire period at issue. In the meantime, the Court is
unable to assess the quality of the reasoning provided by the domestic
authorities, as copies of the relevant decisions have not been provided by the
Government. As regards the Court of Appeal’s decision of 15 December 2003, it
contained no reasons for maintaining the preventive measure in respect of the
applicant. Accordingly, the available material does not give grounds for the
conclusion that the applicant’s detention for the whole period under
examination was based on relevant and sufficient reasons.
In the light of the foregoing considerations the
Court holds that there has been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant further complained that the length
of the criminal proceedings against him had been incompatible with the
“reasonable time” requirement. He relied on Article 6 § 1 of the Convention,
the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
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
1. Submissions by the parties
The applicant maintained that the length of the
criminal proceedings had been unreasonable.
The Government alleged that the length of the
proceedings was compatible with the requirements of Article 6 § 1 of the
Convention, regard being had to the exceptional complexity of the case. There
were no unreasonable delays for which the authorities could be held
responsible.
2. The Court’s assessment
(a) Period to be taken into consideration
The Court notes that in criminal
matters the “reasonable time” referred to in Article 6 § 1 of the Convention
begins to run as soon as a person is “charged”, in other words, given the
official notification by the competent authority of an allegation that he has
committed a criminal
offence. This definition also corresponds to the test whether “the situation of
the [suspect] has been substantially affected”. As regards the end of the
“time”, in criminal
matters the period governed by Article 6 § 1 of the Convention covers the whole
of the proceedings in issue, including appeal proceedings (see Merit v.
Ukraine, no. 66561/01, § 70, 30 March 2004).
The period to be taken into account in the
present case thus commenced in May 1999 and finished in April 2007. It
therefore lasted over seven years and ten months before
the investigation authorities and at two levels of court jurisdiction.
(b) Reasonableness of the length of proceedings
The Court observes 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 following criteria: the complexity of the case
and the conduct of the applicant and the relevant authorities (see, among many
other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II).
The Court further notes that, except for the
initial period between 13 and 21 May 1999, for the remaining period of the
criminal proceedings the applicant was held in detention - a fact which required
particular diligence on the part of the authorities dealing with the case to
administer justice expeditiously (see, for instance, Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 83, ECHR 2003-IX, and Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006).
The Court appreciates that the criminal
proceedings at issue, which concerned charges of criminal activities against fifteen
defendants, were of particular complexity. It notes that the pre-trial authorities
conducted a considerable number of investigative measures, and the courts had
to deal with many factual and legal issues which had to be properly examined
during the court hearings.
On the other hand, the Court considers that
these circumstances are not sufficient to justify the entire period of more
than seven years and ten months for the determination
of the applicant’s case. In particular, it appears from the available material
that a number of delays in the trial took place because of the authorities’
failure to ensure the presence of the other defendants, witnesses and victims.
A delay of almost ten months was caused by the need to set up technical
recordings of the hearings (between September 2001 and July 2002). Many times
the hearings were rescheduled causing numerous delays affecting the overall
length of the proceedings.
Having examined all
the material submitted to it, the Court is unable to conclude that the
authorities handled the applicant’s case with the requisite diligence. The
Court considers that in the instant case the length of the criminal proceedings
against the applicant was excessive, and failed to meet the “reasonable time”
requirement.
64. There has accordingly been a breach of
Article 6 § 1 of the Convention.
IV. 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.”
Damage
It appears that the applicant claimed 7,000,000
euros (EUR) in respect of pecuniary damage.
The Government submitted that the claim was
excessive and unfounded.
The Court notes that the applicant failed to
substantiate the pecuniary damage alleged. It therefore rejects the claim. The
Court further considers that the applicant must have suffered anguish and
distress on account of the facts giving rise to the violations in the present
case, that cannot be made good by finding of violations alone. Ruling on an
equitable basis, the Court awards the applicant EUR 7,000 in respect of
non-pecuniary damage.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the
applicant’s complaint concerning the conditions of his transportation
inadmissible and the remainder of the application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 3 of the Convention;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention;
5. 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 7,000 (seven
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, 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;
6. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
