CASE OF ISAYEV v. UKRAINE
(Application no. 28827/02)
28 May 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Isayev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
The applicant was finally released on 1 October 2003 for health reasons, on an undertaking not to abscond.
B. Proceedings concerning ill-treatment by the police
C. State of the applicant's health and the applicant's medical treatment
II. RELEVANT DOMESTIC LAW AND PRACTICE
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Alleged ill-treatment
2. Alleged absence of appropriate medical treatment
59 The Court applies the standard of proof “beyond reasonable doubt” in its assessment of evidence at its disposal (the Ireland v. the United Kingdom judgment, cited above, p. 65, § 161). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in a large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. In such cases it is up to the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).
60. Turning to the facts of the present case, the Court would emphasise the limited nature (in particular, lack of details on treatment proposed by relevant doctors) and poor quality (in particular, illegible copies) of the medical documentation provided by the Government. The first question for the Court is whether it is established that the applicant's medical conditions were serious enough to need treatment, and whether his alleged suffering attained the minimum level of severity to make Article 3 of the Convention applicable. The Court observes that the applicant's neurological problems were revealed in January 1997 at the latest. Subsequently, in the period to 19 December 2002, the medical diagnoses, so far as they are legible, alternated between those confirming the applicant's neurological problems (paragraphs 30-33 above), diagnoses where no neurological problem was established (paragraph 28 above), and those stating that the applicant's state of health was satisfactory and that he did not need any specific medical treatment (paragraphs 29 and 34 above). In these circumstances, it is difficult for the Court to come to any factual conclusions as to the applicant's state of health and his alleged suffering over the whole of the period at issue.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see also the Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, p. 388, § 35).
“Even though facts that could have warranted [the applicant's] deprivation of liberty may have existed, they were not mentioned in the courts' decisions ... and it is not the Court's task to establish such facts and take the place of the national authorities who ruled on the applicant's detention.”
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
1. Period to be taken into consideration
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 28 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
1 Syringomyelia is a generic term referring to a disorder in which a cyst or cavity forms within the spinal cord which can expand and elongate over time, destroying the spinal cord.