KUSHCH v. UKRAINE - 53865/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 1060 (03 December 2015)

In the case of Kushch v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 10 November 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 53865/11) 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 Sergey Viktorovich Kushch (“the applicant”), on 17 August 2011.

2. The applicant was represented by Mr A.P. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. The applicant complained, in particular, about the medical care available to him in detention and his handcuffing in hospital, as well as the lawfulness and length of his pre-trial detention, its judicial review and the lack of an enforceable right to compensation in that regard.

4. On 3 September 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1969 and lives in Kyiv.

6. Before his detention he had held the post of director of a joint-stock company in charge of the reconstruction of a city tram line in Kyiv financed from the local budget.

A. Criminal proceedings against the applicant and his detention

7. On 20 July 2010 criminal proceedings were instituted in respect of the applicant, as well as two other persons, on suspicion of municipal property embezzlement in particularly large amounts in the context of the tram reconstruction works. More specifically, the applicant was suspected of having artificially increased the price of the crushed stone purchased by his company.

8. On 21 July 2010 the investigator of the Police Department for Combating Organised Crime telephoned the applicant and invited him to appear to give some explanations. The applicant complied and was arrested. The investigator relied on Article 115 of the Code of Criminal Procedure (see paragraph 71 below) and substantiated the applicant’s arrest as follows:

“the witnesses, including the victims, directly indicate this person as the one who committed the crime.”

9. Furthermore, it was indicated that the applicant’s arrest was required with a view to:

“Prevention of absconding from the investigation and court and ensuring execution of a verdict.

Prevention of hindrances to the establishment of truth in a criminal case.”

10. It was also noted in the arrest report that the applicant was suspected of a criminal offence under Article 191 § 5 of the Criminal Code (embezzlement involving particularly large amounts) and that the legal qualification of that crime, as well as the grounds for his arrest, had been explained to him. The applicant also confirmed in writing that his rights had been explained to him in an exhaustive manner and expressed a wish to be represented by a lawyer of his choice. His request was allowed.

11. On 22 July 2010 the applicant’s lawyer challenged his client’s arrest as unlawful before the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”).

12. On the same date the investigator applied to the court for the applicant’s pre-trial detention as a preventive measure pending trial. The application repeated the grounds, on which the criminal proceedings in respect of the applicant had been instituted (see paragraph 7 above). It also noted that the potential punishment for the offence in question was from seven to twelve years’ imprisonment, which indicated that the applicant might abscond if at liberty.

13. On 23 July 2010 a judge of the Golosiyivskyy Court ruled to extend the term of the applicant’s arrest to ten days. The reasoning was as follows:

“Having studied the materials of the criminal case, having heard the explanations of the suspect, the opinion of the prosecutor who supported [the investigator’s] application and requested it to be granted, as well as the position of the defender who objected to that application, having regard to the character of the suspect who is suspected of having committed a particularly serious offence punishable by imprisonment of up to twelve years, bearing in mind that the investigation authorities have not collected sufficient information characterising the suspect and that no charges have been advanced against him, I find it necessary to extend the arrest of [the applicant] to ten days so that sufficient information be collected for the examination of the application in substance.

Furthermore, as regards the [applicant’s] complaint about the unlawfulness of [his] arrest, it has been established that the [investigator] arrested him in compliance with Article 106 of the Code of Criminal Procedure; there are therefore no grounds for allowing this complaint.

In the light of the foregoing and with the purpose of prevention of attempts by the suspect to abscond from the investigation and trial, to hinder the establishment of truth in the criminal case, and in order to ensure compliance with procedural decisions, being guided by Article 165-2 of the Code of Criminal Procedure, the court -

HAS RULED:

To extend the term of [the applicant’s] arrest to ten days ....

To recognise as lawful [his] arrest and to reject [the lawyer’s] complaint [in that regard] ...”

14. On 28 July 2010 a charge of embezzlement involving particularly large amounts was brought against the applicant.

15. On 29 July 2010 the Golosiyivskyy Court ordered his pre-trial detention (for two months) as a preventive measure pending trial. It noted that the applicant was suspected of having committed a particularly serious offence punishable by imprisonment of up to twelve years. Furthermore, the court took into account his “attitude to the committed offence” (the applicant denied his guilt). Lastly, the court observed that it had no information according to which the applicant’s detention would be incompatible with his state of health.

16. On 30 July 2010 the applicant appealed. He submitted, in particular, that the first-instance court had failed to explain why it considered that he would abscond or hinder the investigation. The applicant further argued that the choice of the preventive measure had not been based on an adequate consideration of the particular circumstances of his case.

17. On 5 August 2010 the Kyiv City Court of Appeal (“the Court of Appeal”) found against the applicant. It stated that the Golosiyivskyy Court had thoroughly examined and rejected his arguments.

18. On 16 September 2010 the Golosiyivskyy Court extended the applicant’s pre-trial detention to four months. It repeated its earlier reasoning, having added that a considerable volume of investigative measures had yet to be conducted.

19. On 17 September 2010 the applicant appealed submitting that the deprivation of liberty was the most restrictive preventive measure unjustified in his case. He submitted that the first-instance court had been formalistic and had failed to take into consideration the specific circumstances of the case.

20. On 23 September 2010 the Court of Appeal upheld the ruling of the first-instance court of 16 September 2010 and its reasoning.

21. On 19 November 2010 the Court of Appeal, sitting as a court of first instance, allowed another application of the investigator for extension of the applicant’s pre-trial detention, this time to five months. It explained this decision by the necessity to conduct additional investigative measures. As to the applicant’s request for release, it noted the following:

“As regards [the applicant’s] request for the change of the preventive measure from detention to an undertaking not to abscond, it should be rejected, as the circumstances indicated in this request have already been verified by the court when the preventive measure was chosen in respect of [the applicant] and its grounds remain valid.”

22. On 26 November 2010 a criminal case was opened in respect of the applicant on suspicion of another episode of embezzlement. It was joined to the first criminal case.

23. On 3 December 2010 the investigator applied to the Court of Appeal for extension of the applicant’s pre-trial detention to seven months explaining it by the necessity to carry out further investigative measures.

24. The applicant objected submitting, in particular, that the investigative measures with his participation had been limited to taking samples of his signature and handwriting, as well as the familiarisation with the earlier expert evaluations. Furthermore, he noted that his health had drastically deteriorated in detention.

25. On 21 December 2010 the Court of Appeal extended the applicant’s detention to seven months. It also rejected his request for release under an undertaking not to abscond with a reasoning identical to that given earlier.

26. On 4 January 2011 another criminal case was opened in respect of the applicant and several other persons on suspicion of creation of a criminal organisation aimed at embezzlement of municipal funds. It was joined to the previously opened criminal cases.

27. On 17 February 2011 the Court of Appeal extended the applicant’s pre-trial detention to eight months and rejected his request for release on the same grounds as before.

28. On 5 March 2011 the case was referred to the Podilskyy District Court of Kyiv (“the Podilskyy Court”) for trial.

29. On 21 March 2011 the term of the applicant’s pre-trial detention expired.

30. On 24 March 2011 the Podilskyy Court held a preparatory hearing, during which it decided to keep the applicant in detention. It noted that there were no grounds for changing that preventive measure.

31. On 20 April 2011 the applicant lodged a request for release submitting that his health was deteriorating and that there was nothing to indicate that he would abscond or hinder the establishment of the truth if at liberty.

32. On the same date the Podilskyy Court rejected the request. It noted that, according to the information from the SIZO administration, the applicant’s health condition was not incompatible with his detention. Furthermore, the court stated that he might abscond, hinder the establishment of the truth or continue his criminal activities if released.

33. On 3 August, 7 September, 19 October and 21 December 2011, as well as on 24 January 2012, the Podilskyy Court rejected further requests by the applicant for release based on reasoning similar to that given in its ruling of 20 April 2011.

34. On 6 March 2012 the Podilskyy Court allowed the applicant’s request for release subject to an undertaking not to abscond, having regard to the deterioration of his health and his need for specialised medical treatment.

35. There is no information in the case file on any subsequent developments in the criminal proceedings against the applicant.

B. The applicant’s health and medical care provided to him in detention

36. The applicant has a long history of a number of illnesses. Prior to his detention, from 14 to 25 June 2010, he underwent inpatient medical treatment, in particular, for hypertension, vertebral osteochondrosis, cervical spondylosis, chronic cervicalgia, chronic prostatitis and diffuse goiter.

37. On 21 July 2010 the applicant was arrested (see paragraph 8 above). It is not clear where he was detained thereafter.

38. On 15 August 2010 the applicant was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”). Upon his arrival there, he was examined by the SIZO general practitioner (терапевт) and underwent an Rh-factor blood test and an X-ray chest examination. The applicant was diagnosed with an ischemic heart disease, atherosclerosis of aorta and coronary vessels, stage-II hypertension, chronic cholecystitis in remission, osteochondrosis, chronic maxillary sinusitis in an unstable remission and chronic prostatitis. Certain medicines were prescribed to him.

39. On 4 November 2010, 18 March and 24 May 2011 the SIZO general practitioner examined the applicant. According to the Government, each time specific medicines were prescribed and administered to the applicant. According to the applicant, however, he did not receive any treatment.

40. By a letter of 8 July 2011 the SIZO administration informed the applicant’s lawyer that the applicant was under the medical unit’s monitoring and was receiving regular treatment on account of the hypertension. The letter stated that, given his health condition, the applicant required an additional examination in a civilian hospital and, possibly, inpatient medical treatment. However, in order to proceed with such examination, written permission of the authority dealing with his criminal case was required, as well as the arrangements for ensuring his transportation.

41. On 3 August 2011 the Podilskyy Court, although rejecting the applicant’s request for release (see paragraphs 31 and 32 above), gave its written permission to the SIZO administration for his examination and treatment in a civilian hospital.

42. On 16 August 2011 the SIZO administration wrote to the applicant’s lawyer that it was still impossible to arrange for his client’s convoy.

43. On 23 September 2011 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case and to indicate to the Government the necessity of his urgent medical examination and treatment in a civilian hospital.

44. On the same date the Court informed the Government of this request and invited them to submit, by 7 October 2011, information concerning the applicant’s state of health, the medical treatment he was receiving and its adequacy, having regard to the SIZO administration’s conclusion about his need for examination and treatment in a civilian hospital.

45. On 29 September 2011 the SIZO doctors examined the applicant and confirmed the earlier diagnoses. They prescribed him some medicines and concluded that he did not require inpatient treatment in the SIZO medical unit or urgent hospitalisation in a civilian hospital.

46. On the same date the applicant was also examined by a senior neuropathologist of a local civilian hospital who diagnosed him with some spine conditions and prescribed medicines without recommending hospitalisation.

47. On 3 October 2011 the applicant underwent ultrasonic scanning which confirmed the diagnosis of chronic prostatitis.

48. On 4 October 2011 he received a parcel with medicines from his wife.

49. On 5 October 2011 the applicant was examined by a civilian-hospital cardiologist who established the following diagnoses: a second-degree hypertension with a high risk, impaired glucose tolerance, and ischemic heart disease (questionable). In order to verify the diagnoses, it was recommended that the applicant undergo a number of examinations and tests.

50. On the same date the applicant received a medical consultation from an otolaryngologist who diagnosed him with rhinitis and tonsillitis and prescribed some medicines.

51. On 7 October 2011 the Government responded to the Court’s factual request of 23 September 2011 (see paragraph 44 above). According to them, some of the examinations and tests recommended to the applicant on 5 October 2011 (namely, blood test for glucose, general blood and urine analyses, and ultrasonic scanning of the kidneys) were to be performed in the SIZO medical unit in the short term. As to the other examinations, the Government stated that they would be carried out “on a scheduled basis at civilian hospitals following prior arrangements with the relevant specialists”. Lastly, the medication prescribed to the applicant by the neuropathologist, cardiologist, and otolaryngologist could be administered to him once received from his relatives.

52. On 25 October 2011 the applicant sent to the Court his comments to the Government’s submissions. He stated that they had not provided any documents refuting his allegation of the lack of prompt and adequate medical treatment. He also insisted on his request for an interim measure under Rule 39 of the Rules of Court.

53. On 27 October 2011 the Acting President of the Section to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Ukraine, under Rule 39 of the Rules of Court, that the applicant’s medical examinations which had already been found to be necessary should be carried out and that the conclusions of those examinations should be acted upon without delay.

54. On 11 November 2011 ultrasonic diagnostics of the applicant’s abdominal cavity organs, kidneys and prostate were conducted in the Kyiv City Emergency Hospital. The diagnoses established were as follows: diffusive liver changes, chronic cholecystitis and pancreatitis.

55. On 17 November 2011 the applicant was consulted by a cardiologist and underwent a number of tests and analyses in the Strazhesko Cardiology Institute. He was diagnosed, in particular, with second-degree hypertension, hypercholesterolemia (anamnestic), micronephrolithiasis, chronic cholecystitis, chronic pancreatitis, and spine osteochondrosis.

56. On 22 November 2011 the applicant’s health sharply deteriorated during a court hearing and an ambulance was called for him. He was taken to the Kyiv Emergency Hospital where he underwent inpatient treatment.

57. On 5 December 2011 the applicant was discharged from hospital and transferred to the SIZO. According to him, the medical prescriptions given at his discharge were not respected and he was not provided with the necessary medical care in the SIZO.

58. On 12 and 19 December 2011 the applicant was examined by the doctor of the SIZO medical unit who stated that his diagnoses remained unchanged, without any positive or negative changes being observed. According to the Government, who relied on the extracts from the applicant’s medical file, he continued to receive scheduled outpatient treatment in the SIZO.

59. From 7 to 30 December 2011 a forensic medical evaluation of the applicant’s health condition was conducted on the basis of his medical file. It found that he was suffering from: ischemic heart disease and cardiac insufficiency; second-degree hypertension with a high level of risk and discirculatory encephalopathy; and osteochondrosis in an unsteady remission. The experts also concluded that the applicant required inpatient medical treatment in a specialised cardiologic or neurologic hospital for about ten to fourteen days.

60. On 26 January 2012 the applicant requested the Court once again under Rule 39 of the Rules of Court to indicate to the Government the necessity to ensure his inpatient specialised cardiological treatment in compliance with the recent medical reports.

61. On the same date the Court forwarded that request to the Government and invited them to submit comments by 12 February 2012 as regards their compliance with the measures already indicated to them under Rule 39.

62. On 8 February 2012 the applicant was transferred to the Strazhesko Cardiology Institute, where he was consulted by a commission of three cardiologists and underwent an electrocardiogram examination. He was diagnosed, in particular, with second-degree hypertension in a critical stage. Furthermore, an additional specialised test (a bicycle ergometry) was recommended with a view to clarifying the heart ischemia diagnosis, once the applicant’s blood pressure was stabilised. The commission also stated that the applicant did not require hospitalisation.

63. On 10 February 2012 the Government informed the Court about the aforementioned events.

64. On 15 February 2012 the Podilskyy Court, referring to the findings of the expert medical evaluation of 30 December 2011 (see paragraph 59 above), ordered the applicant’s immediate hospitalisation.

65. On the same date the applicant was placed in the Kyiv City Emergency Hospital.

66. The applicant submitted that he had been handcuffed to his bed for the duration of his stay in hospital. The Government contested the veracity of that allegation. On an unspecified date the chief of the SIZO security unit issued an information note, according to which the applicant was not handcuffed while in hospital.

67. On 26 February 2012 the applicant allegedly had to share his ward with a detainee suffering from an open form of tuberculosis.

68. On 5 March 2012 the lawyer representing the applicant in the domestic proceedings wrote a statement for Mr Bushchenko (the lawyer representing the applicant before the Court) that the applicant had been constantly handcuffed to his bed from 21 February to 5 March 2012. The security officers allegedly disregarded the lawyer’s requests to remove the handcuffs with reference to some internal guidelines.

69. On 6 March 2012 the applicant was released (see paragraph 34 above). It is not known what medical treatment, if any, he pursued thereafter.

II. RELEVANT DOMESTIC LAW

70. The relevant part of Article 29 of the Constitution reads:

“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if, within seventy-two hours of the moment of detention, he or she has not been provided with a reasoned court decision in respect of the detention. ...

71. The relevant provisions of the Code of Criminal Procedure of 1960 (as worded at the material time) read as follows:

Article 106
Detention of a criminal suspect by a body of inquiry

“A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

1. if the person is discovered whilst or immediately after committing an offence;

2. if witnesses, including victims, directly identify this person as having committed the offence;

3. if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home.

If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person only if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established. ...

For each case of arrest of a suspect, the body of inquiry shall be required to draw up an arrest report (протокол затримання) stating the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time of recording that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest report shall be signed by the person who drew it up and by the detainee. ...

Within seventy-two hours of the arrest, the body of inquiry shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the arrest is appealed against to a court, the detainee’s complaint shall immediately be sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint is received after expiry of the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring the arrest to be lawful or allowing the complaint and finding the arrest to be unlawful. ...

The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Preliminary detention of a suspect shall not last for more than seventy-two hours. ...”

Article 106-1
The procedure for short-term detention of suspects

“The procedure for short-term detention of persons suspected of committing a crime shall be determined by the [relevant] regulations...”

Article 115. Arrest of a suspect by an investigator

“An investigator may arrest and question a person suspected of having committed a crime in accordance with the procedure provided for in Articles 106, 106-1, and 107 of the Code. ...”

Article 148
The aim and grounds for the application of preventive measures

“Preventive measures shall be applied in respect of a suspect, accused, defendant or convict with the aim of preventing attempts to abscond from the investigation or trial, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions.

Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convict will try to abscond from the investigation or trial, or evade complying with procedural decisions, or obstruct the establishment of the truth in a criminal case, or pursue criminal activities.

If there are no sufficient grounds to apply a preventive measure, the suspect, accused, defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry, the investigator, prosecutor, or the court, and to inform them of any change of his place of residence.

In the case of the application of a preventive measure in respect of a suspect, he shall be [officially] charged within ten days of the date the preventive measure was applied. If no charges are brought [against him] within that period, the preventive measure shall be lifted.”

Article 149. Preventive measures

“The preventive measures are as follows:

(1) a written undertaking not to abscond;

(2) a personal guarantee;

(3) the guarantee of a public organisation or labour collective;

(3-1) bail;

(4) detention in custody;

(5) supervision by the command of a military unit.

As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”

Article 150
Circumstances to be taken into account in choosing a preventive measure

“In deciding on the application of a preventive measure, in addition to the circumstances specified in Article 148 of the Code, such circumstances as the gravity of the crime of which the person is suspected or with which he is charged, his age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person shall be taken into consideration.”

Article 155
Placement in custody

“Placement in custody, as a preventive measure, may be applied ...

in cases concerning criminal offences carrying a penalty of more than three years’ imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law provides for a punishment of up to three years’ imprisonment ...”

Article 165
General provisions concerning the procedure on the application, discontinuation and change of a preventive measure

“Placement in custody, as a preventive measure, shall be applied only pursuant to a reasoned resolution of a judge or ruling of a court ...

A preventive measure may be replaced by another preventive measure or lifted by the body of inquiry, investigator, prosecutor, judge or a court in accordance with part 1 of the Article.

A preventive measure may be changed or lifted if there is no need for it to be applied ...”

Article 165-2. Procedure for selection of a preventive measure

“At the pre-trial investigation stage, a body of inquiry, or an investigator, or a prosecutor, may choose a preventive measure, except for pre-trial detention or bail.

If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor’s consent, shall lodge a request with the court. ...

The request shall be considered within seventy-two hours of the arrest of the suspect or accused. ...

Upon receiving the request, the judge shall examine the material in the case file submitted by the body of inquiry, or the investigator, or the prosecutor. A judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor, the defence counsel, if the latter appeared before the court, and take a decision:

(1) refusing to apply the preventive measure if there are no grounds for doing so;

(2) applying the preventive measure in respect of the suspect or the accused.

Having refused to apply the custodial preventive measure, the court shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused.

The judge’s decision may be appealed against to the court of appeal by the prosecutor, the suspect, the accused or his or her defence counsel or the legal representative, within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge’s decision.

If in order to select a preventive measure it is necessary to examine additional material concerning the personality of the detainee or to clarify other circumstances of importance, the judge may extend his arrest up to ten days or, if so requested by the suspect or the accused, up to fifteen days. ...”

III. RELEVANT INTERNATIONAL MATERIAL

72. On 14 November 2012 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) published the Report [CPT/Inf (2012) 30] to the Ukrainian Government on a visit to Ukraine from 29 November to 6 December 2011, which had included its visit to the Secure Ward of the Kyiv Municipality Emergency Hospital, where the applicant was held at the time (see paragraphs 56 and 57 above). The relevant extracts from this Report read as follows:

“8. The most serious problem of co-operation was encountered during the visit to the Secure Ward of the Kyiv Municipality Emergency Hospital. The delegation’s access to the ward was delayed for some ten minutes. Police officers present in the ward subsequently told the delegation that patients were never handcuffed to their bed; however, when the delegation then checked the CCTV recordings of the ward, it became apparent that, during the ten minutes it had had to wait outside, police officers had hastily removed the handcuffs of all the patients held in the ward. From the fact that patients themselves initially categorically denied the use of handcuffs, the CPT cannot but conclude that police officers had exerted pressure on them not to reveal the truth to delegation members.

The Committee is very concerned by the fact that the practice of handcuffing patients to hospital beds has continued since the 2009 visit, despite the assurances given to the contrary by the Ukrainian authorities in their response to the report on that visit ...

53. [As] already indicated in paragraph 8, patients had continued to be systematically handcuffed to hospital beds since the 2009 visit. Several patients allegedly remained handcuffed to the bed (with one hand) even while taking their meals and one patient while receiving transfusions.

During the end-of-visit talks, the delegation made an immediate observation under Article 8, paragraph 5, of the Convention and called upon the Ukrainian authorities to put an immediate end to this practice.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE MEDICAL CARE PROVIDED TO THE APPLICANT IN DETENTION

73. The applicant complained about the alleged lack of prompt and adequate medical care provided to him in detention. The Court considers that this complaint falls to be examined under 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

74. 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. The parties’ submissions

75. The applicant submitted that the SIZO, in which he had been detained, did not have adequate specialists or facilities to provide him with the medical care he required. He noted that his health had drastically deteriorated in detention and blamed the authorities for that. The applicant drew the Court’s attention, in particular, to the delays with which his examinations and treatment in the civilian hospitals had been undertaken after the need for them had been acknowledged by the prison authorities themselves. In this connection, he pointed out the cumbersome and lengthy procedure for detainees in Ukraine to prove their specific medical needs and to receive the respective authorisations from the investigator or the court. Lastly, the applicant alleged that he had never in fact been administered the medicines which had been prescribed to him.

76. The Government contended that the applicant had been under constant medical supervision during his detention. They observed that he had been suffering from a number of chronic illnesses for a long time prior to his detention. Accordingly, the Government argued, any deterioration of his health might have resulted from the natural flow of his illnesses rather than from any deficiencies in the medical care available for him. The Government also insisted that the applicant had received all the medicines which had been prescribed to him.

2. The Court’s assessment

(a) General case-law principles

77. The Court has emphasised on many occasions that the health of detainees has to be adequately secured (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005).

78. The Court has also held in its case-law that the mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance provided was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept of the detainee’s state of health and his treatment while in detention (see, for example, Khudobin v. Russia, no. 59696/00, § 83, 26 October 2006); that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006); and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy that seeks, to the extent possible, to cure the detainee’s diseases or to avoid aggravating them, rather than to address them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban, cited above, § 79; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006).

79. On the whole, the Court reserves a fair degree of flexibility in defining the standard of health care required, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

(b) Application of the above principles to the present case

80. The Court notes that the thrust of the applicant’s complaint in the present case concerns his delayed examinations and treatment in a civilian hospital. It is to be seen whether such delays occurred and, if so, whether they entailed pain or suffering for the applicant that reached the “minimum threshold of severity” for Article 3 of the Convention to come into play.

81. In the present case the Court observes that the SIZO administration acknowledged the need for the applicant’s examination and treatment in a civilian hospital on 8 July 2011. It then took about a month for the Podilskyy Court to give its permission for his hospitalisation. However, two weeks later the SIZO administration admitted difficulties in organising the applicant’s transportation. Another month elapsed and on 29 September 2011 the SIZO doctors reconsidered their view as to the necessity of the applicant’s hospitalisation.

82. It follows that the applicant’s medical condition did not receive an adequate and timely response from the domestic authorities for almost three months, essentially on account of bureaucratic and logistical difficulties. It does not appear that a reasonable effort was made to deal with those difficulties. Instead, the initial conclusion on the applicant’s need for hospitalisation was reconsidered.

83. The Court further notes that, about a week later, on 5 October 2011, a civilian cardiologist examined the applicant in the SIZO and recommended a number of tests and examinations. There was, however, a delay with the implementation of those recommendations.

84. In the absence of any practical steps on the part of the authorities, on 27 October 2011 the Court applied Rule 39 of the Rules of Court at the applicant’s request. It indicated to the Government that “the applicant’s medical examinations which have already been found to be necessary should be carried out and that the conclusions of those examinations should be acted upon without delay”.

85. The Court observes that the applicant underwent an examination in a specialised cardiological hospital only on 17 November 2011.

86. In other words, the examination in question took place one and a half months after it had been medically recommended (on 5 October 2011 - see paragraph 49 above) and twenty-one days after the interim measure had been indicated by the Court to the Government (on 27 October 2011 - see paragraph 53 above). The authorities did not advance any explanation for that delay.

87. The Court next observes that cardiologists of the Strazhesko Institute concluded on 17 November 2011 and 8 February 2012 that no hospitalisation was needed. In the meantime, however, the applicant’s health had deteriorated to an extent warranting his hospitalisation and one-week treatment in an emergency hospital. Furthermore, between the two aforementioned conclusions, a forensic expert medical commission had held the opposite on 30 December 2011: that the applicant did require inpatient medical treatment in a specialised hospital. Eventually, such treatment was undertaken on 15 February 2012.

88. The Court considers that the authorities’ unjustified delays in putting into practice their own decisions to take the applicant to a civilian hospital, the contradictions in the medical findings as regards his need for hospitalisation and, moreover, the failure to act on them, as well as the subsequent deterioration of the applicant’s health in detention, are sufficient indications of a serious failing on the part of the respondent State to provide him with appropriate medical care while in detention, which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

89. There has therefore been a violation of Article 3 of the Convention in this regard.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S HANDCUFFING IN HOSPITAL

90. The applicant also complained under Article 3 of the Convention about being handcuffed to his bed while in hospital.

A. Admissibility

91. 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

92. The applicant submitted that he had been attached to his bed by handcuffs all the time during his stay in hospital. To substantiate this complaint, he referred, in particular, to his lawyer’s statement of 5 March 2012 and to the CPT Report of 14 November 2012 (see paragraphs 68 and 72 above). The applicant contended that handcuffing imprisoned patients was a common practice in Ukraine. In this connection, he drew the Court’s attention to the absence of any official statistics on the use of restraints in hospitals.

93. The Government submitted that the applicant had never been handcuffed in hospital. They relied on the respective statement of the SIZO administration and observed that there were no documents proving the opposite. Furthermore, the Government noted that the applicant had not complained about his handcuffing to the prosecution authorities or courts.

94. The Court reiterates 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).

95. Turning to the present case, the Court observes that the parties are in dispute as to whether the applicant was handcuffed at all while in hospital. The Court notes that the applicant stayed in the Kyiv Emergency Hospital during the following two periods: from 22 November to 5 December 2011 and from 15 February to 6 March 2012 (see paragraphs 56-57 and 65-69 above). His allegation about being handcuffed to his bed in hospital is corroborated, in particular, by the findings of the CPT following its visit to that hospital at the relevant time (see paragraph 72 above; and, for the case-law to compare, see Iovchev v. Bulgaria, no. 41211/98, § 130, 2 February 2006). The CPT stated in its report that the practice of handcuffing patients to their hospital beds had continued for years. Moreover, it was observed in the report that during the CPT visit in 2011 the authorities had been trying to conceal that practice and appeared to have exercised pressure on the patients not to reveal the truth.

96. In these circumstances that Court considers it sufficiently established that the applicant was handcuffed during his treatment in the Kyiv Emergency Hospital.

97. In the absence of any clearly discernible security or other considerations justifying this restrictive and humiliating measure and having regard to the applicant’s frail health, the Court considers that his handcuffing in hospital amounted to inhuman and degrading treatment (see Okhrimenko v. Ukraine, no. 53896/07, § 98, 15 October 2009).

98. Accordingly, there has been a violation of Article 3 of the Convention in this regard too.

III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

99. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complained that several periods of his detention (from 21 to 23 July and from 23 to 29 July 2010, as well as from 21 to 23 March 2011 and from 24 March 2011 to 6 March 2012) had been unlawful and that its overall length had been unreasonable. He also complained under Article 5 § 4 about a lack of adequate review proceedings. Lastly, he complained under Article 5 § 5 that he did not have an enforceable right to compensation in respect of the aforementioned violations. The relevant provisions of Article 5 read as follows:

Article 5

“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.”

Admissibility

100. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

1. Article 5 § 1

(a) The parties’ submissions

101. The applicant submitted that his arrest had been unlawful and unjustified. He also complained that his detention after the completion of the pre-trial investigation and before the preparatory court hearing had not been covered by any judicial decision. Lastly, the applicant complained that the courts had failed to justify his continued detention, or to set any time-limits for it, at the trial stage.

102. The Government contested the applicant’s arguments. They observed, in particular, that one day prior to his arrest, on 20 July 2010, a criminal case had been opened against him on suspicion of municipal property embezzlement involving particularly large amounts. Accordingly, the Government maintained that his arrest had been based on a reasonable suspicion of a criminal offence. They also contended that his subsequent detention, likewise, was in compliance with the domestic legislation and could not be regarded as unlawful or arbitrary.

103. The Court notes that the applicant’s complaints concern several distinctive periods of his detention. It will therefore analyse each of them separately.

(b) The Court’s assessment

(i) General case-law principles

104. The Court reiterates that under Article 5 § 1 (c) a person may be detained in the context of criminal proceedings only for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence. A “reasonable suspicion” that a criminal offence has been committed presupposes the existence of facts or information that would satisfy an objective observer that the person concerned may have committed an offence (see Włoch v. Poland, no. 27785/95, § 108, ECHR 2000-XI).

105. The expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, and the Court can and should review whether that law has been complied with (see, among many other references, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II).

106. The “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that the detention, during the period under consideration, was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 84, 24 June 2010). In order for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007, Khayredinov v. Ukraine, no. 38717/04, § 27, 14 October 2010 and Korneykova v. Ukraine, no. 39884/05, § 34, 19 January 2012).

(ii) Application of the above principles to the present case

(α) Lawfulness of the applicant’s detention from 21 to 23 July 2010

107. The Court notes that the relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure clearly provide that the maximum period of detention without a judicial decision is seventy-two hours, during which period the relevant authorities must present an apprehended person to a member of the judiciary (see paragraphs 70 and 71 above). It is not disputed that the aforementioned seventy-two-hour statutory time-limit of initial detention as laid down in the domestic legislation was not exceeded in the present case (see, for a converse example, Gal v. Ukraine, no. 6759/11, § 28, 16 April 2015).

108. The Court further observes that the legal basis for the applicant’s arrest, as indicated in the arrest report, was Article 115 of the Code of Criminal Procedure (see paragraphs 8 and 71 above). The Court has already held in another case against Ukraine that a mere reference to that provision, without further details, would not suffice for complying with the lawfulness requirement (see Korneykova, cited above, § 34).

109. In the present case, the investigator further justified the decision on the applicant’s arrest for the initial seventy-two hours by the fact that “the witnesses, including the victims, [had] directly [indicated the applicant] as the one who committed the crime” (see paragraph 8 above). While this reasoning appears rather concise, the Court does not lose sight of the applicant’s written statement in the arrest report that the legal qualification of the crime of which he was suspected, the grounds for his arrest and his rights had been explained to him in an exhaustive manner (see paragraph 10 above).

110. The Court accepts that a reasonable suspicion against an applicant of having committed a serious offence, as well as the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses, constitute a valid ground for the applicant’s initial detention (see Ślusarczyk v. Poland, no. 23463/04, § 156, 28 October 2014).

111. Accordingly, having regard to all the circumstances of the present case, the Court does not see any indication of unlawfulness or arbitrariness as regards the applicant’s initial detention from 21 to 23 July 2010.

112. There has therefore been no violation of Article 5 § 1 of the Convention in this regard.

(β) Lawfulness of the applicant’s detention from 23 to 29 July 2010

113. The Court notes that when the applicant was taken to the court, the latter did not order his pre-trial detention, but extended his arrest for up to ten days to collect unspecified additional information about his character necessary to decide whether detention was to be applied as a preventive measure in his case. No details were given as to what exactly remained to be verified and why it was necessary to keep the applicant in custody in the meantime (see paragraph 13 above).

114. The Court further notes that, in such circumstances, the investigating authorities’ request for the applicant’s detention does not appear to be well founded. Therefore, it can be concluded that the court authorised the further ten days’ detention only in order to provide the investigating authorities with more time to substantiate their request, when there was no evidence that any circumstances had prevented them from doing so before submitting a request for detention. Moreover, it does not appear from the documents submitted by the parties that there were any compelling reasons for the applicant’s continued detention (see and compare with Barilo v. Ukraine, no. 9607/06, § 97, 16 May 2013).

115. The Court thus considers that during the period in question the applicant was detained in breach of Article 5 § 1 of the Convention.

(γ) Lawfulness of the applicant’s detention from 21 to 23 March 2011

116. The Court observes that the applicant’s detention, which had been ordered by the judicial decision of 17 February 2011, expired on 21 March 2011. Meanwhile, on 5 March 2011, the case had been referred to the first-instance court for trial. On 23 March 2011 the Podilskyy Court held its preparatory hearing, at which it ordered the applicant’s further detention as a preventive measure. It follows that his detention between 21 and 23 March 2011 was not covered by any judicial decision.

117. The Court notes that it has regularly found violations of Article 5 § 1 of the Convention in Ukrainian cases as regards the periods of detention not covered by any court order, namely for the period between the end of the investigation and the beginning of the trial. The Court has also concluded that this issue seemed to stem from a legislative lacuna (see Kharchenko v. Ukraine, no. 40107/02, §§ 70-72 and 98, 10 February 2011).

(δ) Lawfulness of the applicant’s detention from 24 March 2011 to 6 March 2012

118. The Court observes that, although the Podilskyy Court upheld the pre-trial detention measure in respect of the applicant on 24 March 2011, it did not set a time-limit for his continued detention and did not give any reasons for its decision. This left the applicant in a state of uncertainty as to the grounds for his detention after that date.

119. The Court has already held in other cases that such a practice, which is recurrent in Ukraine, whereby court orders made during the trial stage set no time-limits for the further detention of a defendant, and uphold rather than extend his or her previous detention, is not compatible with the requirements of Article 5 § 1 of the Convention (see, for example, Kharchenko, cited above, §§ 76 and 98).

120. There has therefore been a violation of Article 5 § 1 of the Convention.

2. Article 5 § 3

121. The applicant complained that his continued pre-trial detention had been excessively long and unjustified.

122. The Government considered the length of the applicant’s pre-trial detention to be reasonable. They contended that the domestic courts had adduced relevant and sufficient reasons to justify it. Furthermore, the Government drew the Court’s attention to the fact that the criminal proceedings in question concerned complex factual and legal issues and that the domestic authorities had demonstrated due diligence in the investigation.

123. The Court notes that the applicant’s pre-trial detention in the present case lasted from 21 July 2010 to 6 March 2012, that is for one year seven months and fourteen days.

124. The Court reiterates that the issue whether a period of detention is reasonable cannot be assessed in abstracto. This must be assessed in each case according to its special features, the reasons given in the domestic decisions and the well-documented matters referred to by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among others, Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).

125. Turning to the present case, the Court observes that, in extending the applicant’s detention and rejecting his requests for release, the domestic courts mainly referred to the reasoning for his initial placement in detention, without any updated details. Furthermore, at no stage in the period under consideration did the domestic courts consider applying any alternative preventive measures, and by relying essentially on the gravity of the charges and the hypothetic risk of the applicant’s absconding, the authorities maintained his detention on grounds which, regard being had to its length, cannot be regarded as “sufficient” (see Kharchenko, cited above, §§ 80-81 and 99).

126. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.

3. Article 5 § 4

127. The applicant also complained about a lack of adequate review proceedings during both the pre-trial investigation and the trial stage.

128. The Government contended that the applicant had had at his disposal and had used an effective procedure to challenge the lawfulness of his detention.

129. The Court notes that the lawfulness of the applicant’s detention was considered by the domestic courts on many occasions both during the pre-trial investigation and during the trial. However, those decisions cannot be regarded as satisfying the requirements of Article 5 § 4, because they merely reiterated a standard set of grounds for the applicant’s detention without any examination of the plausibility of such grounds in the circumstances of his particular situation. Furthermore, as regards the trial stage, the Court has already found that Ukrainian law did not provide for a procedure of review of the lawfulness of continued detention after the completion of pre-trial investigations which satisfied the requirements of Article 5 § 4 of the Convention (see Kharchenko, cited above, §§ 85 and 100).

130. It follows that there has been a violation of Article 5 § 4 of the Convention in the present case.

4. Article 5 § 5

131. The applicant also complained that he did not have an enforceable right to compensation in respect of the aforementioned violations of the other paragraphs of Article 5.

132. The Government submitted that the Ukrainian legislation provided for the possibility to claim compensation for unlawful detention subject to a judicial decision acknowledging such unlawfulness. It was not, however, applicable to the circumstances of the present case, because the applicant’s detention had been lawful.

133. The Court reiterates that Article 5 § 5 guarantees an enforceable right to compensation to those who have been the victims of arrest or detention in contravention of the other provisions of Article 5 (see Steel and Others v. the United Kingdom, 23 September 1998, § 81, Reports 1998-VII).

134. In the present case the Court has found several violations of Article 5 §§ 1, 3 and 4, in conjunction with which the present complaint is to be examined (see paragraphs 115, 117, 120, 126 and 130 above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether Ukrainian law afforded or now affords the applicant an enforceable right to compensation for the breaches of Article 5 §§ 1, 3 and 4 of the Convention in his case.

135. The Court observes that the issue of compensation for unlawful detention is regulated in Ukraine by the Law on the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts (“the Compensation Act”). The right to compensation arises, in particular, where the unlawfulness of the detention has been established by a judicial decision.

136. The Court notes that, as long as the applicant’s detention is in formal compliance with the domestic legislation, it is impossible for him to claim compensation in that regard at the national level. Furthermore, there is no legally envisaged procedure in Ukraine for bringing proceedings to seek compensation for the deprivation of liberty found to be in breach of one of the other paragraphs by the Strasbourg Court (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 233, 21 April 2011).

137. This means that one of the principles of Article 5 § 5 - namely, that the effective enjoyment of the right to compensation guaranteed by it must be ensured with a sufficient degree of certainty (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, 17 January 2012, with further references) - does not appear to be met in the present case.

138. There has therefore been a violation of Article 5 § 5 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

139. The applicant also complained under Article 3 of the Convention that he had been exposed to a risk of infection with tuberculosis being forced to share his hospital ward with a detainee suffering from an open form of tuberculosis on 26 February 2012.

140. Furthermore, the applicant complained under Article 18 that the real purpose of his deprivation of liberty had been to coerce him into confessing to having committed the crimes with which he was charged.

141. 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

142. 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

143. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

144. The Government contested this claim as unsubstantiated and exorbitant.

145. The Court considers that the applicant must have suffered physical pain and mental anguish on account of the violations found. Having regard to the nature of those violations, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

146. The applicant also claimed EUR 9,072 in respect of his legal representation in the proceedings before the Court. This amount comprised: EUR 8,100 for 64 hours of legal work at the rate of EUR 150 per hour; EUR 648 for administrative costs (calculated at 8% of the legal fees); and EUR 324 for postal expenses. To substantiate this claim, the applicant submitted a legal assistance contract with Mr Bushchenko, as well as a number of time sheets.

147. The Government contested the above claim.

148. The Court must establish, firstly, whether the costs and expenses indicated by the applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

149. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 3,000 covering costs under all heads.

C. Default interest

150. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant’s complaints under Article 3 of the Convention regarding the medical care available to him in detention and his handcuffing in hospital, as well as his complaints under Article 5 §§ 1, 3, 4 and 5 of the Convention, admissible and remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention in respect of the medical care available to the applicant in detention;

3. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s handcuffing in hospital;

4. Holds that there has been no violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 21 to 23 July 2010;

5. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 23 to 29 July 2010, from 21 to 23 March 2011, and from 24 March 2011 to 6 March 2012;

6. Holds that there has been a violation of Article 5 § 3 of the Convention;

7. Holds that there has been a violation of Article 5 § 4 of the Convention;

8. Holds that there has been a violation of Article 5 § 5 of the Convention;

9. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KUSHCH v. UKRAINE - 53865/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 1060 (03 December 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1060.html Cite as: [2015] ECHR 1060