CASE OF KULIK v. UKRAINE
(Application no. 34515/04)
2 February 2017
This judgment is final but it may be subject to editorial revision.
In the case of Kulik v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 10 January 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 34515/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Anatolyevich Kulik (“the applicant”), on 14 September 2004.
2. The applicant, who had been granted legal aid, was represented, most recently, by Mrs O. Ashchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms I. Lishchyna, from the Ministry of Justice.
3. The applicant complained in particular that the conditions of his detention (including on trial days) and the conditions of his transportation to and from the courts had been poor, that he had been subject to ill-treatment by State agents, that his pre-trial detention had been unlawful, and that his rights of defence had been violated.
4. On 24 February 2012 the application was communicated to the Government. On 26 September 2013 the Court invited the Government to submit further observations on the admissibility and merits of the present application.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1968 and is presently serving a life sentence in Prison no. 31 in the Chernigiv Region.
A. Criminal proceedings against the applicant
6. On 24 January 2003 V. and H. were found dead in their flat.
7. On 25 January 2003 the police launched a murder investigation.
8. On 30 January 2003 the Kyiv Prosecutor’s Office (“the prosecutor’s office”) instituted criminal proceedings against the applicant and declared him wanted for the murder of V. and H.; on the same date the applicant was charged in absentia with the double murder.
9. According to the applicant, on the evening of 30 January 2003 he had been apprehended by the police in Kharkiv and detained in the Leninsky District police station. He had been ill-treated by the police in order to make him confess to the double murder. A police officer, K., and another unspecified police officer had suffocated him and threatened to kill him and members of his family. They had also promised that if the applicant confessed they would persuade the trial court that the applicant was insane and could not be held liable for the murders. The applicant, in the absence of a lawyer, had agreed to confess and had drafted a “statement of surrender and confession” (явка с повинной), as dictated by police officer K. The confession was dated 1 February 2003 and stated that the applicant’s rights under Article 63 of the Constitution had been explained to him. On 31 January 2003 he was transferred to the Desniansky District police station in Kyiv.
10. According to the Government, the applicant had been apprehended on the evening of 31 January 2003 in Kharkiv and had been detained at the Leninsky District police station until 1 February 2003, when he had been transferred to Kyiv. He had not been ill-treated or questioned while in Kharkiv and had made no statement.
11. On 31 January 2003 the prosecutor requested the Desniansky District Court of Kyiv (“the District Court”) to approve the applicant’s apprehension and transportation by force to the court in order to decide on the preventive measure to be applied to him. On the same date, the District Court allowed the prosecutor’s request.
12. On 1 February 2003, having been delivered to the prosecutor’s office, the applicant signed a report that his defence rights had been explained to him and noted in writing that he wished to consult a lawyer before he was first questioned. Thereafter, a report on the applicant’s arrest was drawn up, according to which the applicant had been arrested in Kyiv on 1 February 2003 at 6 p.m. and his right to legal assistance following his arrest had been explained to him.
13. On the same date, according to the Government, the applicant had been placed in the Kyiv Temporary Detention Facility (“the ITT”) where he had made a written “statement of surrender and confession” in which he had confessed, for the first time, to the murder of V. and H.
14. On the same date the applicant’s wife informed the prosecutor that she had hired a lawyer, Mrs K., to represent the applicant and requested that she be admitted to the proceedings.
15. On 3 February 2003 the investigator granted the applicant’s wife’s request and, in the presence of the lawyer, informed him of the charges brought against him on 30 January 2003. He further questioned him in this regard. The applicant made assertions similar to those contained in his confession of 1 February 2003. According to the applicant, on that day, and before each further round of questioning, police officers threatened that if he retracted his confession, his cellmates, some of whom were drug addicts suffering from AIDS, would strangle or bite him.
16. On 4 February 2003 the District Court ordered the applicant’s detention, having stated that there were reasons to believe that, if released, the applicant would continue his criminal activity and might abscond from the investigation. It referred in this respect to the gravity of the charges against the applicant and his placement on a wanted list.
17. On the same day, a medical expert found scratches on both sides of the applicant’s hands which, according to the expert, could have been the result of a fight between the applicant and the murder victims; the applicant did not give any explanation as to the cause of these injuries.
18. On 5 February 2003 a crime scene reconstruction was carried out in the presence of the applicant’s lawyer. The applicant again acknowledged his guilt regarding the double murder. Later on the same day, having reviewed a video recording of the reconstruction, the applicant and his lawyer made no comments.
19. On 13 February 2003 the applicant was admitted to the Kyiv Pre-trial Detention Centre no. 13 (“the Kyiv SIZO”). A medical examination of the applicant on the same date revealed no injuries on his body.
20. On 25 March and 27 June 2003 the applicant was questioned in the presence of his lawyer and again confessed to the murder of V. and H.
21. On 26 March and on 24 April 2003 the District Court extended the applicant’s detention to three and four months respectively, reiterating the reasoning contained in its ruling of 4 February 2003 and referring to the need to complete certain investigative actions.
22. On 30 May 2003 the Kyiv Court of Appeal (“the Court of Appeal”) extended the applicant’s detention to five months, citing the same grounds as the District Court.
23. On 27 June 2003 the applicant was additionally charged with theft and fraud. On the same date the investigation was completed and on an unspecified date the case was sent to the Court of Appeal for trial at the first instance.
24. On 22 August 2003 the Court of Appeal held a preparatory hearing and ordered that the applicant continue to be kept in detention, without giving any reason.
25. During the trial the applicant retracted all his statements given at the pre-trial stage, including those given in the presence of his lawyer, and pleaded not guilty to the double murder. He stated, inter alia, that all his self-incriminating statements had been made under duress in that he had been beaten by the police officers, threatened before each round of questioning and given false promises of release. He had also wanted his case to be referred for trial as soon as possible.
26. On 3 October 2003 the Court of Appeal convicted the applicant as charged and sentenced him to life imprisonment. It noted that the applicant’s guilt was confirmed, inter alia, by his initial confession and subsequent statements made in the presence of his lawyer. It was further noted that in the course of the pre-trial investigation neither the applicant nor his lawyer had ever complained about any ill-treatment by the police. The judgment contains reference to a statement by officer K. to the effect that the applicant had written his confession at a police station in Kharkiv after being apprehended. The applicant appealed against the judgment and requested that the preventive measure be changed to that of a written undertaking not to abscond.
27. On 25 March 2004, in the presence of the applicant and his lawyer, the Supreme Court quashed the above judgment for procedural shortcomings. It also refused the applicant’s request for release from pre-trial detention and upheld the preventive measure imposed on him. The court referred to the fact that no final decision had been made as to whether the applicant was guilty; it also referred to information about the applicant’s personality and his previous behaviour, but did not give further details. No time-limit was set in respect of the applicant’s continued detention.
28. On 13 April 2004 the applicant’s wife was admitted to the proceedings as his lay representative.
29. On 21 April 2004 the Court of Appeal, in the applicant’s presence, held a preparatory hearing at which it upheld the preventive measure taken with respect to the applicant, having refused the latter’s request for a change of preventive measure to that of a written undertaking not to abscond. In so doing it referred to the gravity of charges, information about the applicant’s personality (without giving any further details), and to “other circumstances falling under Article 148 of the Code of Criminal Procedure”. No time-limit for the continuing detention was set.
30. During the re-trial the applicant asserted his innocence and repeated his previous allegation that his procedural rights had been violated during the pre-trial investigation (see paragraph 25 above).
31. On 18 February 2005 the Court of Appeal disjoined the fraud charges from the case and remitted them for further investigation. By the same ruling the applicant was ordered to remain in detention; no reasons were given and no time-limit set. By another ruling of the same day the Court of Appeal dismissed the applicant’s request for a change of preventive measure on the same grounds as those given in its ruling of 21 April 2004.
32. On 18 March 2005 the Court of Appeal found the applicant guilty as charged and sentenced him to life imprisonment. It relied, inter alia, on the applicant’s self-incriminating statements given during the pre-trial investigation, including his written confession dated 1 February 2003. The court noted that those statements should prevail over the testimony that the applicant had given during the trial as they had been all confirmed by the applicant in the presence of his lawyer and were consistent and concordant with a range of other evidence in the case which, in its entirety, had been gathered in compliance with domestic law.
33. By the same decision, the Court of Appeal rejected the applicant’s complaint of ill-treatment by the police as unsubstantiated. Having questioned the applicant, the police officers and some witnesses, and having examined the video recording of the crime scene reconstruction and the medical report of 4 February 2003, the court found no evidence in support of the applicant’s allegations. It also noted that the applicant had been represented by a lawyer of his own choice during the pre-trial stage and had never previously complained about any ill-treatment.
34. According to the documents submitted by the Government, between 29 March 2005 and 28 April 2005, the applicant requested and was granted access to all nine volumes of his case file and the audio recordings of the hearings. In June 2005 the applicant asked the Court of Appeal to allow him to go through the case file again. On 13 June 2005 that request was refused on the ground that the applicant had already studied the case file in full.
35. The applicant appealed against his conviction, arguing that it had been based on forged documents, untruthful testimonies and inadmissible evidence. He submitted that he had been unlawfully arrested on 30 January 2003 in Kharkiv but that his detention had remained unrecorded until 1 February 2003 and that he had not been brought before the judge within 72 hours of his arrest. The applicant further alleged that his request for a lawyer on 30 January 2003 had been ignored and that, on that night, he had been questioned, beaten and forced to give self-incriminatory statements in exchange for the investigator’s promise not to harm his family and to release him on the grounds that he was mentally disabled. The applicant reiterated that he had been forced to repeat his confession in the presence of his lawyer and that he had informed his lawyer of his ill-treatment at the hands of the investigator. However, the investigator had not kept his promise and the applicant’s confessions had been used as a basis for the applicant’s conviction. The applicant further complained, inter alia, that his arrest and detention on remand had been unlawful; that he had not been able to communicate with his representative confidentially during the court hearings because he had been held handcuffed in a cage; that he had not been granted enough time and facilities to prepare his defence because the hearings had been held on a daily basis and he had not been granted full access to the case file; and that the authorities had unlawfully refused to allow his wife to visit him in the Kyiv SIZO on 14 February and 10 March 2005. The prosecutors also appealed against the judgement of 18 March 2005.
36. On 26 July 2005 the Supreme Court, in the presence of the applicant and his lay representative, upheld the applicant’s conviction and sentence. The court based its findings to a large extent on the confessions of the applicant given during the pre-trial investigation. It noted, inter alia, that in his “statement of surrender and confession” of 1 February 2003 the applicant had provided details about the murder which he could not have known without being a direct perpetrator. At the time, those details had not been known to the police and therefore, contrary to the applicant’s statement, could not have been dictated to him by the officers. The credibility of his statements had been further confirmed by the applicant on a number of occasions in the presence of the lawyer of his choosing, as well as by a number of other pieces of evidence in the case. The court noted that the applicant had been apprehended on 30 January 2003 but stated that no investigative actions had been taken in respect of his case before 3 February 2003 and that after that date all investigative actions had been carried out in the presence of a lawyer. For those reasons and having further found that the Court of Appeal had duly examined the applicant’s complaints of ill-treatment and lack of legal assistance, it dismissed the applicant’s allegations as ill-founded. The applicant’s allegation regarding lack of access to the case file was likewise dismissed as ill-founded; detailed reasoning was given for that dismissal.
37. On 11 August 2006 the applicant lodged an extraordinary appeal with the Supreme Court. On 22 December 2006 the Supreme Court rejected that appeal as unsubstantiated.
38. From 3 February 2003 and throughout the pre-trial investigation, the applicant was represented by Mrs K., the lawyer hired by the applicant’s wife. The case file further indicates that during the trial the applicant was represented by several lawyers, including legal-aid lawyers and, at one stage, a lawyer hired by the applicant’s brother.
B. Disclosure to the media of information about criminal proceedings against the applicant
39. On 6 February 2003, at the request of the private television channel Kyiv, information about the circumstances of the murder of V. and H. was disclosed by the prosecutors to the channel and was subsequently broadcast a number of times in the course of 2003 as a part of a regular television programme. According to the applicant, the channel had been provided with a copy of the video recording of the crime scene reconstruction.
40. On unspecified dates, the applicant complained to the prosecutors about the provision of that video recording. In their written replies, the prosecutors stated that pre-trial investigation data had been disclosed within the limits authorised by law and that the disclosed information had not interfered with any of the applicant’s rights.
41. During his trial, the applicant unsuccessfully complained to the courts that the provision of the video recording had violated his right to the presumption of innocence. He did not institute any separate court proceedings in respect of this alleged violation against the prosecutors or the television channel.
C. Conditions of the applicant’s detention
1. Police stations and the ITT
42. According to the applicant, from 30 January until 13 February 2003 he had been held in cells measuring 7 sq. m with up to ten other inmates and had not been provided with a bed or linen. Moreover, he had not been given an opportunity to shave or wash himself; before 5 February 2003 he had not received any food.
43. The Government submitted no factual details regarding the applicant’s detention during the above-mentioned period.
2. The Kyiv SIZO
44. Between 13 February 2003 and 14 December 2005 the applicant was detained in the Kyiv SIZO.
(a) The applicant’s version
45. Between 14 and 24 December 2003 the applicant had been held in cell no. 32, measuring about 50 sq. m, together with fifty-two other inmates. He had then been transferred to cell no. 95, measuring 7 sq. m, and had stayed there until March 2004 together with four other inmates. In March 2003 the applicant had been transferred to cell no. 85, measuring 16 sq. m, where he had stayed with twelve other inmates.
46. From 3 October 2003 until 25 March 2004 and from 18 March 2005 until 14 December 2005 the applicant had been detained in cells measuring 7 sq. m. The windows in all of the above cells had been shuttered, letting in no daylight and very little fresh air. Each cell had been infested with insects and had had a toilet which had not been separated from the living area. The food had been of poor quality (watery porridge with margarine, decaying fish, stinking sauerkraut). Meat, eggs, and dairy products had not been provided and fresh vegetables and fruit had only been provided rarely. The applicant had not been allowed to use his watch and shaving accessories or to receive parcels and have visits from his relatives. No adequate medical assistance had been provided to the applicant, and after 18 March 2005 he had been prohibited from receiving medicines from his relatives.
47. On 14 February and 10 March 2005 the Kyiv SIZO administration had refused to allow the applicant’s wife to visit him.
(b) The Government’s version
48. Having noted that it was no longer possible to establish in which cells the applicant had been held because the time-limit for keeping the relevant documents had expired and the records had been destroyed, the Government challenged the applicant’s description of the size of the cells and his estimate of how many inmates they had held. They provided the following details of the cells:
- cell no. 32 - 54.1 sq. m with thirty-eight individual beds;
- cell no. 85 - 21.4 sq. m with twelve individual beds;
- cell no. 95 - 9.29 sq. m with four individual beds;
- cell no. 141 - 8.2 sq. m with two individual beds;
- cell no. 154 - 9 sq. m with two individual beds.
49. They further stated that all the cells in the Kyiv SIZO had been equipped with a ventilation system. The windows had been equipped with small hinged panes for ventilation, which had allowed the circulation of fresh air. Each cell had had a lavatory, separated from the living area. The cells had been regularly disinfected. The prisoners had been provided with hot meals of adequate quality three times a day, including on those days when they attended court hearings.
3. The Dnipropetrovsk pre-trial detention centre
50. Between 4 and 13 May 2008 the applicant stayed in the Dnipropetrovsk pre-trial detention centre (“the Dnipropetrovsk SIZO”). According to the applicant, no medical assistance had been provided to him in respect of the tuberculosis from which he suffered. Moreover, he had been held in cell no. 3 with a detainee suffering from the active form of tuberculosis.
51. The Government provided no factual details regarding the conditions of the applicant’s detention in that facility.
4. Prison no. 47
52. The applicant stayed in the above prison from 14 December 2005 until 24 April 2008 and from 27 October 2008 until 18 April 2012.
53. According to the applicant, between 14 December 2005 and 21 January 2008 he had been held together with inmates suffering from a latent form of tuberculosis. On 13 January 2008 he had been transferred to a cell which had previously been occupied by a prisoner who had suffered the active form of this disease. The latter cell had not been disinfected, had had no heating system and had had windows partly covered with plastic instead of glass. The quality of food and of medical care in the prison had been inappropriate. According to the applicant, such detention conditions had seriously affected his health in that on 13 April 2006 he had been diagnosed with hypertension and on 21 January 2008 with tuberculosis.
54. The Government stated that the applicant’s cell had been equipped with ventilation and a central heating system. The prison had been provided with disinfectant products in full and cells had been regularly disinfected by the prisoners themselves. A bactericidal lamp had also been available. Under prison regulations, a special disinfection of cells was to be carried out when a prisoner was discovered to be suffering from an active form of tuberculosis. Prisoners serving life sentences were X-rayed twice a year to check for tuberculosis. Those who communicated with a person suffering from the active form of tuberculosis were X-rayed and received the appropriate treatment.
5. Prison no. 61
55. From 13 May 2008 until 12 October 2008 the applicant was held in a hospital for prisoners suffering from tuberculosis, located in prison no. 61. From 13 until 31 May 2008 he stayed in cell no. 1 and from 25 June 2008 until 25 July 2008 in cell no. 4. It remains unknown in which cells the applicant stayed for the rest of that time.
56. According to the applicant, the cells had been stuffy as the windows had been kept closed from 7 a.m. until 6 p.m. They had never been disinfected and had been full of rats. Food and medical care in the facility had been terrible, leading to the death of many prisoners. His cellmates had suffered from the active form of tuberculosis.
57. According to the Government, the applicant had been detained separately from other prisoners in cells which had been duly ventilated. He had been provided with sufficient and appropriate nutrition.
D. The conditions in which the applicant was detained and transported on trial days
1. The applicant’s account
58. The applicant submitted that on trial days the conditions of his detention had been as follows. He had been routinely woken up between 4 a.m. and 5 a.m. From 6 a.m. until 6.30 a.m. he had been provided with a little sugar and a piece of bread and thereafter placed, for about an hour, in a special cell measuring about 30 sq. m and housing between thirty and forty detainees at a time. The cell had had a toilet that was not separated from the rest of the space and no ventilation or furniture. At about 7.30 a.m. the applicant had been taken to a transit cell, measuring about 14 sq. m and housing about 20 detainees at a time, where he had usually had to wait for several hours before being escorted onwards. The transit cell had had poor ventilation, two bunks with room for eight seated detainees, and a table. At 9.30 a.m. the applicant had been taken to a special room where he had had to undergo a strip search in front of other people. At 9.40 a.m. he and some twenty other detainees had been locked, for about half an hour, in a toilet with no ventilation or windows and then taken to the prison van. The van had measured 6 sq. m, had afforded insufficient access to fresh air and had not been heated. The applicant had thus been exposed to high temperatures in summer and freezing temperatures in winter. There had been instances when upon returning to the Kyiv SIZO the applicant had had to wait in the van for up to three hours while security checks had been carried out. During the hearings, which had normally been held between 11 a.m. and 2 p.m., the applicant had been held in a metal cage guarded by three armed officers, and nobody - including his defence counsel - had been allowed to come closer than within one metre of him. Once each day’s hearing had finished, the applicant had been taken either to a special transit cell measuring 0.8 sq. m or, with four other detainees, to a cell measuring 2 sq. m, where he had had to wait for several hours without food before being escorted to the prison van. Upon his return to the Kyiv SIZO, the applicant and nine other detainees had had to wait for an hour in an unventilated transit cell measuring 3 sq. m before being publicly strip-searched again and placed in another cell measuring 12 sq. m and housing up to twenty detainees at a time, with no windows and poor ventilation. At about 11 p.m. the applicant had been escorted to his cell.
59. According to the applicant, the hearings in his case had been carried out on a daily basis. The case file suggests that the applicant was transported and detained under the above conditions on at least four occasions.
60. According to the applicant, on 25 March 2004 and 20 May and 26 July 2005 he had been handcuffed all day with his hands behind his back from early morning, when he had been taken out of his cell to be escorted to the court, until the evening, when he had returned to his cell from the hearings.
61. On 29 June 2005 the applicant lodged a complaint with the Pecherskyy District Court of Kyiv under the private prosecution procedure against the head of the unit which had escorted him on 20 May 2005 and claimed damages for his unlawful handcuffing. On 8 July 2005 that complaint was returned to him on account of procedural shortcomings. The applicant did not lodge his complaint again and did not appeal.
2. The Government’s account
62. According to the Government, prison vans measured 8 sq. m inside and were designed to accommodate twenty-two people in three compartments (two larger ones, measuring 2.5 sq. m and designed for ten passengers each, and one small compartment for two passengers). The vans had no windows, but they were equipped with ventilation grills and benches for sitting on. They further submitted that on account of the high number of detainees daily escorted from the Kyiv SIZO to courts, prison vans had had to wait in a line upon their return to the detention facility, but never for more than one hour.
63. The Government also stated, referring to the relevant domestic regulations, that (a) all detainees who had at least three consecutive days of hearings in their cases should be provided with three meals per day, with lunch being delivered directly to the court; (b) a full search of the detainees before their being escorted to court was to be carried out in separate isolated premises and in the absence of persons of the opposite gender; (c) it was the responsibility of the head of the escorting unit in question to decide whether an escorted person should be handcuffed, taking into account the situation in hand, the danger posed by the escorted person, and other relevant factors. As regards the alleged handcuffing, they further submitted that it appeared to be impossible to establish whether the applicant had been handcuffed, as alleged, and whether he had lodged any complaint in this respect, because the time-limit for keeping the relevant documents had expired and all the records had been destroyed.
E. Alleged ill-treatment of the applicant
1. Incident at the Court of Appeal on 16 September 2004
64. On 16 September 2004, in the course of a hearing in his case, the applicant requested the Court of Appeal to call him an ambulance because he felt unwell. His request was refused and treated by the presiding judge as an attempt to delay the proceedings as there had been no information from the Kyiv SIZO to the effect that the applicant was in a poor state of health. However, the hearing was adjourned until 30 September 2004.
2. The applicant’s alleged beating on 3 April 2005
65. According to the applicant, on 3 April 2005 he and his two cellmates had been beaten, for no reason, by Kyiv SIZO guards during their daily walk in the backyard. As a result he had sustained a bruise on his right leg measuring 5 cm x 7 cm.
66. On 4 April 2005 the applicant’s wife complained to the Prosecutor General and to the Kyiv SIZO administration about the applicant’s beating, but did not specify any injury. On 17 May 2005 the prosecutor, having conducted an inquiry into the matter, replied to her that her complaint appeared to be unfounded. Neither the applicant nor his wife challenged the prosecutor’s reply.
67. On 5 and 6 April 2005 the applicant complained to the State Department of Punishments and to the Kyiv SIZO administration respectively that the Kyiv SIZO staff had refused to record the injuries caused to him by the alleged beating and had not allowed him to summon the prosecutor.
3. Events of 17 November 2007 in prison no. 47
68. On 17 November 2007 searches were carried out in the prison cells.
69. According to the applicant, on that day a group of hooded prison officers had burst into the cell in which he had been held together with other prisoners; he and his cellmates had been ordered to lie down with their hands behind their heads. When the applicant had tried to adopt a more comfortable position he had been hit with a rubber truncheon in the back. Thereafter, the officers had taken the prisoners into the corridor and ordered them to undress completely. They had then ordered them to squat and afterwards had taken them to the prison yard, where they had stayed for two hours half-dressed in temperatures of -10 ˚C. In the meantime, the applicant’s cell had been searched and, as a result, some of his personal belongings, such as food, books, photos and letters, had disappeared.
70. On 19 November 2007 the applicant complained to the prosecutor’s office and to the Ombudsman that the above search had been unlawful and that some of his personal belongings had disappeared. He stated that he had “not been beaten this time” and mentioned nothing about staying outside half-dressed or having to squat. On 5 January 2008 an investigator arrived at the prison intending to question the applicant in connection with his complaint. The documents submitted by the Government suggest (without giving any reasons) that the applicant refused to meet the investigator. On 14 March 2008 the prosecutor informed the applicant by letter that the search had been lawful and that no instances of the use of force or any other form of inhuman treatment towards the prisoners had been established by the inquiry conducted following his complaint of 19 November 2007. The applicant did not challenge the prosecutor’s reply.
71. On 20 November 2007 five prisoners from the same prison complained to the prosecutor’s office, stating that on 17 November 2007 a group of special prison officers had ill-treated them and that some of their personal belongings had disappeared. However, they refused to give further details during the subsequent investigation into their complaint. On 26 November 2007 a prosecutor refused to open criminal proceedings, and the prosecutor’s office refused to open an investigation in respect of the five prisoners’ allegations after finding that those allegations were unsubstantiated. It was established, inter alia, that the prisoners had been properly dressed when taken to the backyard and that no physical force had been exercised against them. None of the prisoners appealed against the resolution, despite the fact that the right to appeal had been explained to them.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine (1996)
72. The relevant provisions can be found, for example, in the Court’s judgment in the case of Ogorodnik v. Ukraine (no. 29644/10, § 65, 5 February 2015).
B. Criminal Code (2001)
73. Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of between seven and fifteen years. Under paragraph 2 of Article 115, if premeditated murder has been committed in one of the aggravating circumstances listed in that paragraph (including the murder of a child), it is punishable by imprisonment for a term of between ten and fifteen years, or by life imprisonment.
C. Code of Criminal Procedure (1960), as worded at the relevant time
74. The relevant provisions of the Code of Criminal Procedure (“the CCP”) concerning the application of preventive measures and access to a lawyer may be found in Zakshevskiy v. Ukraine (no. 7193/04, §§ 47 and 48, 17 March 2016).
75. Article 395 of the CCP provides, inter alia, that the Court of Cassation must review whether a court decision that has been challenged is lawful and substantiated on the basis of the relevant case file and any additional material submitted. The scope of such a review is limited to the arguments made in the cassation appeal(s). The court is empowered to review the case beyond the arguments made in the cassation appeal(s) only if this does not worsen the position of the convicted or acquitted person.
D. Code of Criminal Procedure (2012)
76. The provision of the Code concerning the reopening of proceedings reads as follows:
Grounds for a review by the Supreme Court
of Ukraine of judicial decisions
“1. Grounds for a review by the Supreme Court of Ukraine of judicial decisions which came into force shall be:
4) the finding by an international judicial body, whose jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case [in question].”
E. Law on the Execution of Judgments of the European Court of Human Rights 2006
77. Section 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including the review of a case by a court and the reopening of judicial proceedings.
III. RELEVANT INTERNATIONAL AND DOMESTIC REPORTS
78. The relevant international and domestic materials concerning conditions of detention and the transportation of detainees can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007), Titarenko v. Ukraine (no. 31720/02, § 41, 20 September 2012), Gorbatenko v. Ukraine (no. 25209/06, §§ 97-98, 28 November 2013), Andrey Yakovenko v. Ukraine (no. 63727/11, §§ 71-73, 13 March 2014), and Muršić v. Croatia [GC] (no. 7334/13, §§ 136-139, 20 October 2016).
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
79. The applicant complained about the conditions of his detention in the ITT, the police stations, the Kyiv and Dnipropetrovsk SIZOs and prisons nos. 47 and 61. In this respect, he referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The ITT, the police stations and the Dnipropetrovsk SIZO
80. The Government submitted that the applicant’s complaints had been lodged outside the six-month time-limit envisaged by the Convention.
81. The applicant maintained his complaint.
82. The case file indicates that the applicant’s complaint with respect to the ITT and police stations was lodged with the Court on 30 October 2004 and the complaint concerning the Dnipropetrovsk SIZO on 14 December 2008.
83. Having regard to its case-law on the application of the six-month rule to complaints concerning conditions of detention (see, for example, Ananyev and others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012), the Court observes that the relevant complaints were raised more than six months after the respective detention periods had ended. It therefore finds that this part of the application must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention, as being introduced out of time.
2. Prison no. 61
84. The Government submitted that the conditions of the applicant’s detention had been adequate and that the applicant’s submissions had been unsubstantiated.
85. The applicant maintained his complaint and stated that the food and medical care in the facility had been terrible, leading to the deaths of many prisoners. To protest about his detention conditions he had had to go on hunger strike.
86. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 161, Series A no. 25, and Kleutin v. Ukraine, no. 5911/05, § 52, 23 June 2016).
87. The Court notes that the applicant’s complaint is formulated in general terms and is not sufficiently detailed for the Court to establish to what extent the applicant personally suffered from the conditions that he described. Furthermore, no judgment has yet been delivered by the Court in a case which concerned conditions of detention in prison no. 61 in the period referred to by the applicant. The Court therefore considers that this part of the application lacks substantiation and must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The Kyiv SIZO and prison no. 47
88. The Government referred to their factual submissions (see paragraphs 48, 49 and 54 above) and argued that the applicant’s allegations were unsubstantiated. They further referred to the applicant’s medical records and stated that the applicant had not complained to the domestic authorities that his state of health had worsened in the Kyiv SIZO or that, as a result, he had required medical assistance.
89. The applicant maintained his complaints, referring to his factual submissions (see paragraphs 45-47 and 52-53 above).
90. 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. The parties’ submissions
91. The Government stated that both the Kyiv SIZO and prison no. 47 had offered conditions compatible with Article 3 of the Convention. As regards the latter they further stated that all the prison cells in which the applicant had been held had been sufficiently ventilated and disinfected, the temperature in the cells had been adequate, and prisoners with tuberculosis had been held separately from healthy detainees.
92. The applicant disagreed.
2. The Court’s assessment
(a) The Kyiv SIZO
93. Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of such a measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).
94. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention and may disclose a violation, both alone or taken together with other shortcomings. When the personal space available to a detainee falls below 3 square metres of floor space in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39-40, 7 April 2005, Ananyev and others, cited above, §§ 145-147 and 149, and Muršić, cited above, §§ 136-139). This presumption will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor; (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, §§ 130, 133 and 134).
95. The Court notes that in the present case the applicant has provided some details concerning the size of each particular cell in which he stayed during specific periods of time, as well as the number of inmates accommodated therein, and other arrangements in each such cell. The Government provided their own description of the conditions in which the applicant had been detained and disputed the size of the cells and the number of detainees held in those cells, while also admitting that records concerning persons who had been in the Kyiv SIZO with the applicant had been destroyed.
96. The Court does not find it necessary to resolve the factual dispute between the parties as, in any event, the available evidence indicates that during his stay in the Kyiv SIZO the applicant had lacked sufficient personal space. In particular, as reported by the Government, some of the cells in which the applicant had been detained had allowed between approximately 1.5 sq. m and 2.5 sq. m of floor space per inmate. The Government did not actually state how many inmates had occupied these cells at the relevant time, the records having been destroyed.
97. Furthermore, given that the cells had also contained sanitary facilities, the personal space available to detainees had been further reduced.
98. As regards other elements relevant for the assessment of the conditions of detention, the Court notes that the applicant’s submissions as regards unsanitary environment and non-respect for hygiene are well detailed. Moreover, on a number of occasions the Court has already found a violation of Article 3 of the Convention in respect of overcrowding and unsanitary environment in the same pre-trial detention centre during the same period of time - see Gavula v. Ukraine, no. 52652/07, 16 May 2013 (concerning the period from 26 February 2003 until August 2010); Koval v. Ukraine, no. 65550/01, 19 October 2006 (concerning the period from 3 August 1999 until 6 June 2000); and Kharchenko v. Ukraine, no. 40107/02, 10 February 2011 (concerning the period from 20 April 2001 until 4 August 2003). It therefore accepts the applicant’s description of the relevant facts.
99. Although neither of the parties specified the amount of time the applicant had spent each day locked up in his cell, the Court observes, given the regulations concerning the SIZO regime in Ukraine, that the applicant and his cellmates had to spend most of each day in the above conditions (see Gavula, cited above, § 71).
100. In these circumstances, the Court finds that the conditions of the applicant’s detention in the Kyiv SIZO (in particular the lack of personal space afforded to the applicant), combined with the unsanitary environment in respect of personal hygiene and the lack of outdoor exercise for almost three years of his detention, amounted to degrading treatment. Accordingly, there has been a violation of Article 3 of the Convention in this respect.
101. In view of those findings, the Court does not find it necessary to address the remainder of the applicant’s allegations under this head.
(b) Prison no. 47
102. The Court notes that the parties’ accounts differ in respect of various details regarding the material conditions of the applicant’s detention and that neither position is supported by sufficient evidence. At the same time, the case file suggests - and this is not disputed by the parties - that the applicant contracted tuberculosis during his stay in prison no. 47. This fact constitutes sufficient indirect evidence in support of the applicant’s allegations that the authorities failed to ensure appropriate conditions in respect of his detention in that facility. Consequently, the Court finds that the Government has failed to discharge their duty under Article 3 of the Convention vis-ŕ-vis the applicant and that there was, accordingly, a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION AND TRANSPORTATION ON TRIAL DAYS AND HIS PLACEMENT IN A METAL CAGE DURING COURT HEARINGS
103. The applicant complained about the conditions in which he had been transported to and from court proceedings and about the conditions of his detention on trial days, including his permanent handcuffing on 25 March 2004, 20 May and 26 July 2005. He further alleged that he had been held in a cage with metal bars during the hearings in respect of his case. He referred to Article 3 of the Convention, cited above.
104. The Government stated that the applicant’s complaint regarding his all-day handcuffing on 25 March 2004 had been brought before the Court for the first time in the applicant’s letter of 18 April 2005 and must therefore be rejected as lodged out of time.
105. They further submitted that the applicant had not exhausted the domestic remedies for his complaint concerning the conditions of his transportation as he had never lodged the complaint in question with the prosecutor’s office. They noted that if the domestic authorities had acknowledged the unlawfulness of the transportation conditions, he could have lodged a civil claim for damages.
106. The Government also argued that the applicant’s allegations concerning public strip searches on trial days and the handcuffing on 20 May and 26 July 2005 were not supported by any evidence. They referred in this respect to the domestic regulations governing the relevant issues (see paragraph 63 above).
107. The applicant maintained his complaints.
108. As regards the alleged handcuffing of the applicant on 25 March 2004, the Court observes that his complaints can be understood as concerning separate actions on the part of the authorities rather than a continuous violation over the detention period in question. Given that neither of the parties suggested that there had been effective remedies for these complaints and taking into account the date on which the complaint about his handcuffing on 25 March 2004 was lodged with the Court (18 April 2005), the Court finds that that the complaint is out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.
109. The Court further notes, as far as the applicant’s complaint about conditions of transportation is concerned, that it has rejected similar objections raised by the Government regarding the non-exhaustion of domestic remedies in a number of other cases (see, for example, Koktysh, cited above, § 87). It sees no reason to depart from its previous findings in the present case and finds that this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies. Nor can it be rejected as being manifestly ill-founded or declared inadmissible on any other grounds. It should therefore be declared admissible.
110. As regards the remainder of the applicant’s complaints, the Court finds that the relevant 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. Conditions of detention and transportation on trial days
111. The applicant referred to his factual submissions (see paragraphs 58-60 above) and maintained that the treatment to which he had been subjected during the trial had been incompatible with Article 3 of the Convention.
112. The Government contended that the conditions in which the applicant had been transported to and from court hearings had been in compliance with the domestic law. They submitted that, in any event, these conditions had not reached the threshold required by Article 3 of the Convention. The Government provided no comment with respect to the applicant’s allegations concerning the conditions of his detention on trial days.
113. The Court recalls its case-law, as referred to in paragraph 95 above, and further notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case in question, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162, and Kulyk v. Ukraine, no. 30760/06, § 77, 23 June 2016). Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it has adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out the finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
114. Turning to the present case, the Court finds that the applicant’s complaints concerning the conditions of his detention in the Kyiv SIZO on trial days and his transportation in a prison van to and from court hearings are detailed and consistent. The applicant’s arguments are not refuted by the Government. They are also supported by the international and domestic reports examined by the Court in the cases of Yakovenko and Koktysh, both cited above, and by the findings of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during its visit to Ukraine in September 2009.
115. Furthermore, similar conditions in respect of a detainee’s transportation and detention have given rise to the finding of a violation of Article 3 of the Convention in a number of the Court’s judgments (see, for example, Andrey Yakovenko, cited above, §§ 98-103 and, as the most recent example, Yaroshovets and others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 101-104, 3 December 2015). No arguments have been put forward by the Government which would enable the Court to reach a different conclusion in the present case. The Court therefore considers that the conditions of detention and transportation to which the applicant was subjected during the days of the hearings were in breach of Article 3 of the Convention.
116. In view of these findings, the Court does not consider it necessary to examine separately the applicant’s particular allegations about his having been handcuffed on two occasions on the hearing days.
2. Placement in a metal cage during court hearings
117. The applicant maintained that the Government provided no proper reason for keeping him in a metal cage during the trial. He had always been handcuffed and guarded by three armed men and had thus represented no threat to security. The decision to cage the applicant during his trial had humiliated him in his own eyes and made him feel that his standing was not equal to that of other participants in the proceedings.
118. The Government claimed that holding the applicant behind metal bars had not been intended to humiliate or debase him but to ensure public safety. They contended that such arrangements could in no way have caused him distress or humiliation of an intensity exceeding the unavoidable level of suffering or humiliation inherent in detention.
119. The Court has held that holding a person in a metal cage during a trial constitutes in itself - having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society - an affront to human dignity in breach of Article 3 (see Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)).
120. The Court observes that holding defendants, even those who have not been convicted, in metal cages during a court hearing appears to be standard procedure in Ukraine (see Titarenko, cited above, § 41). It further notes, turning to the present case, that the Government failed to provide any evidence that there had been an actual and specific security risk in the courtroom which required holding the applicant, who had been guarded by three officers, in a metal cage during the hearings in his case.
121. Accordingly, there has been a violation of Article 3 of the Convention on this account.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ILL-TREATMENT
122. The applicant complained under Article 3 of the Convention that he had been tortured and threatened by the police on 30 January 2003 and that he had been beaten by Kyiv SIZO officers on 3 April 2005 and by prison officers on 17 November 2007. He also relied on Article 3 in complaining about the authorities’ failure to provide him with medical assistance on 16 September 2004 and during his transit to and from prison no. 61.
A. Alleged ill-treatment by police on the night of 30/31 January 2003
123. The applicant complained that the police officers had ill-treated him during the night of 30/31 January 2003 in order to make him confess to the murder of V. and H. and that during his forensic medical examination the experts had refused to record his resulting injuries, apart from scratches on his hands.
124. The Government submitted that these complaints had not been supported by medical or any other evidence. They further noted that, at domestic level, the applicant had raised his complaint only during the trial and that the complaint had been dismissed by domestic courts as unsubstantiated.
125. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see paragraph 87 above).
126. In the present case, the applicant did not specify what injuries he had sustained during the alleged ill-treatment and failed to support his allegations with any medical or other evidence. Apart from the applicant’s statement, the Court has no evidence to suggest that he was subjected to physical ill-treatment or any psychological pressure by police officers. It further notes that the applicant’s allegation was examined by the courts dealing with his criminal case and no evidence of ill-treatment was found by those courts either. The courts heard the applicant, the police and escorting officers. They further examined the applicant’s medical file and the results of his forensic medical examination of 4 February 2003. A video recording of the crime scene reconstruction conducted with the applicant’s participation shortly after the alleged ill-treatment was also studied.
127. In view of the above, the Court cannot conclude beyond reasonable doubt that the applicant was ill-treated by the police, as alleged. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged lack of medical assistance on 16 September 2004 and between 24 April and 13 May 2008
128. In his letter of 18 April 2005 the applicant complained to the Court that during the hearing of 16 September 2004 the presiding judge had refused to call him an ambulance, even though he had needed medical assistance.
129. On 14 December 2008 the applicant complained to the Court of a lack of adequate treatment for his tuberculosis during his transit from prison no. 47 to prison no. 61 between 24 April and 13 May 2008.
130. The Government submitted that the above complaints should be rejected as lodged out of time.
131. The applicant maintained his complaints.
132. The Court observes that the events complained of by the applicant took place more than six months prior to the lodging of the relevant complaints with the Court (see, mutatis mutandis, Gritsenko v. Ukraine (dec.), no. 13777/03, 24 September 2013, and Mikhaniv v. Ukraine (dec.), no. 75522/01, 20 May 2008). Given that the case file does not suggest that there were effective remedies for the applicant’s complaints, the Court finds that these complaints are out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. The applicant’s alleged beating on 3 April 2005
133. The Government stated that the applicant’s allegations were not supported by any evidence. They further claimed that the applicant had never complained in person about any beating and that the prosecutor’s decision of 17 May 2005, delivered after the applicant’s wife had complained of the alleged beating, had not been appealed against by the latter.
134. The applicant maintained his complaint.
135. To the extent that the Government’s submissions suggest that the applicant has not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, the Court does not, in the circumstances of the present case, find it necessary to examine this issue, as the complaint is in any event inadmissible for the following reasons.
136. The Court observes that the applicant’s complaint before the Court is essentially based on his own description of the events, which is rather short and general. It is limited to a statement that he and his inmates were beaten by certain special prison officers in the Kyiv SIZO’s backyard and that, as a result, he sustained a bruise on his leg measuring 5 cm x 7 cm.
137. Further, the applicant has presented no medical evidence in support of his statement. The only evidence he submitted consisted of copies of his complaints to the domestic authorities - one of them being supported by the signatures of his alleged cellmates; neither was accompanied by any evidence of their having been sent to or received by the authorities - as well as his wife’s complaints of 4 April 2005 (see paragraphs 66 and 67 for more details). The Court notes that the above-mentioned complaints by the applicant are set out in general terms and provide no details as to the ill-treatment itself or the injuries sustained. The Court observes that a copy of the applicant’s complaint to the Kyiv SIZO administration of 6 April 2005 contains his wife’s handwritten statement that on 11 April 2005 - that is to say ten days after the alleged ill-treatment took place and five days after the complaint at issue had been lodged - she saw a large abrasion on the applicant’s right leg. While the Court is of the opinion that the applicant’s wife cannot be seen as an unbiased witness, it nevertheless notes that in none of her own complaints to the domestic authorities - submitted the day after the alleged beating - did she refer to any particular injury sustained by the applicant, despite having stated to the Prosecutor General that she had met the applicant on the day on which she had lodged the complaint.
138. Given these circumstances, the Court considers that the present complaint has not been properly substantiated by the applicant. Therefore, it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
D. Events in prison no. 47 on 17 November 2007
139. The Government submitted that the applicant’s complaint was manifestly ill-founded and not supported by any evidence.
140. They also referred to the results of the investigation conducted by the prosecutor’s office after other prisoners had lodged similar complaints (see paragraph 71 above) and noted that none of the prisoners involved had appealed against the prosecutor’s findings. As regards the applicant’s particular case, the Government noted that he had not applied for medical assistance either on 17 November 2007 or on the following days. They further noted that the applicant’s complaint to the prosecutor’s office concerned exclusively the alleged unlawfulness of the search and that the applicant had failed to pursue his complaint and cooperate with the prosecutor during the inquiry into his allegations. Likewise, he had failed to appeal against the prosecutor’s decision.
141. The applicant insisted that on 17 November 2007 he had been subjected to torture and inhuman and humiliating treatment and further stated that as result of hypothermia, caused by standing barefoot and naked for almost two hours on the concrete floor he had later suffered from pulmonary tuberculosis.
142. The Court notes that while the applicant provided a detailed account of the events, his complaint is essentially based on his own description of those events and is not supported by any other evidence such as witness statements. Furthermore, in his complaint to the prosecutor’s office regarding the events of 17 November 2007, a copy of which was provided to the Court by the Government, the applicant - having stated that he had been humiliated by special prison officers - referred only to an unlawful search and gave details of the items that he had found to be missing after that search. Moreover, the Court cannot overlook the fact that the applicant refused - and this has not been either disputed or explained by him - to give details in respect of his complaint during the relevant investigation conducted by the prosecutor.
143. Further, the applicant provided no evidence that he suffered from hypothermia as a result of the events complained of or at least that he complained in this respect to the medical unit of the Kyiv SIZO. Neither can any such evidence be found by the Court in the medical documentation concerning the applicant that was provided by the Government, to the extent that the copies provided are legible and understandable. As regards the applicant’s statement that his tuberculosis was a consequence of his alleged ill-treatment, the Court notes that, without any supporting medical evidence, those allegations are purely speculative. It should also not be overlooked that in the part of his application concerning his having contracted tuberculosis in prison no. 47 (see paragraph 53 above), the applicant did not refer to the events of 17 November 2007 as being among the factors that had led to his suffering from disease.
144. In these circumstances, the Court, having regard to the available material, considers that the present complaint has not been properly substantiated by the applicant. Therefore it must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
145. The applicant complained that his apprehension on 30 January 2003 had remained unrecorded until 1 February 2003 and that his initial confinement in custody and his pre-trial detention between 30 June 2003 and 22 August 2003, as well as during the retrial of his case, had been unlawful as it had either not been covered by any court order or had been ordered without sufficient reasons and with no time-limit. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”
146. The Government submitted that the complaint in respect of the applicant’s detention between 30 January and 4 February 2003 was inadmissible for non-exhaustion of domestic remedies as the applicant could have challenged his detention under Article 106 of the CCP and could then have lodged a claim for damages.
147. They further argued that the applicant’s complaints relating to the period from 30 June to 22 August 2003 should be rejected as submitted out of time.
148. The Government submitted no observations on the admissibility of the remainder of the applicant’s complaint.
149. The applicant maintained his complaints.
150. The Court notes that it has already considered in similar circumstances the remedies suggested by the Government and held that they could not be deemed effective and did not have to be exhausted (see Lopatin and Medvedskiy v. Ukraine nos. 2278/03 and 6222/03, §§ 76 and 77, 20 May 2010, and Savin v. Ukraine, no. 34725/08, § 77, 16 February 2012). The Court has no reason to hold otherwise in the present case and dismisses the Government’s objection.
151. The Court further notes that from 3 October 2003 to 25 March 2004 the applicant was held in custody after having been convicted by the first-instance court and his detention during this period was covered by Article 5 § 1 (a) of the Convention.
152. Thus, even assuming that the applicant’s arrest and initial detention represented a continuous situation, which also covered the period from 30 June until 22 August 2003, the relevant complaints were, in any event, to be lodged not later than six months after the applicant’s original conviction at first instance on 3 October 2003. Accordingly, given that the application was lodged with the Court on 14 September 2004, the Court dismisses these complaints as lodged out of time, in accordance with Article 35 §§ 1 and 4 of the Convention.
153. As regards the applicant’s complaint about the unlawfulness of his detention from 25 March 2004 to 18 March 2005, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.
154. The applicant maintained his complaint.
155. The Government submitted that the applicant’s detention within the period in question had been in compliance with applicable domestic law and had been based on valid court decisions.
156. The Court emphasises that Article 5 § 1 of the Convention requires that 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). For the Court, detention pursuant to Article 5 § 1 (c) must embody a proportionality requirement, which implies a reasoned decision balancing relevant arguments for and against release (see Khayredinov v. Ukraine, no. 38717/04, § 86, 14 October 2010).
157. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004, and Castravet v. Moldova, no. 23393/05, § 33, 13 March 2007).
158. The Court observes that after the applicant’s initial conviction was quashed and the case remitted for retrial the applicant’s continuing detention was ordered by domestic courts on three occasions, namely by the Supreme Court on 25 March 2004 and by the Court of Appeal on 21 April 2004 and 18 February 2005 respectively (for more details see paragraphs 27, 29 and 31 above).
159. Without going into an assessment of the reasoning given by the courts to justify the applicant’s detention, the Court notes that the detention was ordered for an indefinite period of time, which in itself runs contrary to the lawfulness requirement enshrined in Article 5 of the Convention (see, for example, Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 59, 27 November 2008, and Doronin v. Ukraine, no. 16505/02, § 59, 19 February 2009). Moreover, the Court has concluded that this has been a recurrent issue in the case-law against Ukraine stemming from legislative lacunae (see Kharchenko, cited above, § 98, and Kondratyev v. Ukraine, no. 5203/09, §§ 109-112, 15 December 2011).
160. There has accordingly been a violation of Article 5 § 1 of the Convention in this regard.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
161. In his letter of 2 September 2005, the applicant complained to the Court that on 25 March and 21 April 2004 he had lodged requests for release with domestic courts but that they had been rejected with no proper reasons given.
162. The complaint falls to be examined under Article 5 § 4 of the Convention, which provides as follows:
“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.”
163. Having referred to the case of Osypenko v. Ukraine (no. 4634/04, 9 November 2010), the Government submitted that this complaint should be dismissed as lodged more than six months after the requests complained of had been finally disposed at the domestic level.
164. The Court notes that it follows from the case file that the requests for release referred to by the applicant were determined by the domestic courts on the respective day on which each was lodged - that is 25 March and 21 April 2004. The Court therefore accepts the Government’s objection and finds that the applicant has failed to comply with the six-month rule with respect to this complaint (see Hristov v. Bulgaria (dec.), no. 35436/97, 19 September 2000, and Mello v. Slovakia (dec.), no. 67030/01, 21 June 2005).
165. It follows that this part of the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
166. The applicant complained of various violations of Article 6 of the Convention, the relevant parts of which provide:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
A. Alleged violation of Article 6 §§ 1 and 3 (b)
167. The applicant submitted that he had not been granted access to all the material in the case file or to “material evidence” when preparing his appeal to the Supreme Court against his conviction of 18 March 2005.
168. The Government contested this argument and stated that the applicant had studied all nine volumes of the case file and listened to audio recordings of the hearings. In support of their statements, the Government provided copies of the relevant documents, which all bore the signatures of the applicant and his lawyer. They lastly noted that there was no evidence that the applicant’s alleged inability to access the case file in its entirety had affected the effectiveness of the applicant’s representation.
169. In his reply to the Government’s observations, the applicant submitted that the Government’s evidence had been forged and that there was no proof that he had studied volumes 1-5 of the case file. He further noted that he had listened only to audio recordings of his own comments on the trial records but not those of the trial itself.
170. The Court observes, on the basis of the documentary evidence before it, that the applicant studied all nine volumes of the case file prior to the trial before the Supreme Court. Reference to their content can also be found in a number of the applicant’s submissions before the domestic courts, including the applicant’s appeal in cassation. In so far as the applicant can be understood to be complaining that there existed other materials which had been intentionally hidden from him, the applicant failed to specify which additional materials - other than those he had been acquainted with - he believed had been added to the file and which of them he had needed to study. Neither did he explain why he needed to re-examine those volumes of the case file which he had examined before the trial. Likewise, the applicant did not specify to what “material evidence” he was not granted access and how this had hindered his ability to raise arguments in his defence before the Supreme Court. Finally, the Court notes that the applicant’s complaints were carefully examined by the Supreme Court during the appeal proceedings and were dismissed as unsubstantiated, with sound reasons given.
171. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violation of Article 6 §§ 1 and 3 (c)
1. The parties’ submissions
172. The applicant complained that his right to a fair trial had been violated as he had not been legally represented during the initial stage of the investigation and the self-incriminating statements that he had given in the absence of a lawyer had been used by domestic courts to secure his conviction.
173. He further complained that his hired and legal-aid lawyers had failed to ensure his effective legal representation in the proceedings. He noted, in particular, that Mrs K., the lawyer hired by the applicant’s wife, had been passive and had never appeared before the court and that his representation by three legal-aid lawyers had been purely nominal as they had “never appeared at the hearings and never tried to consult him during the hearings or in the Kyiv SIZO”.
174. The applicant lastly complained that his wife, having been admitted to the proceedings as his lay representative, had not been able to effectively exercise her functions as she had not been granted permission to visit him in the Kyiv SIZO on 14 February, 3 March and 7 June 2005, had not been granted access to the case file and had not been given the possibility to present her arguments at the hearing before the Supreme Court of Ukraine on 26 July 2005.
175. The Government contended that the applicant had voluntarily decided to confess on 1 February 2003 and had expressed his wish to see his lawyer before the first round of questioning. The first round of questioning had taken place on 3 February 2003 in the presence of the lawyer hired by the applicant’s wife and no investigative steps had been taken before that date. During the first round of questioning and all following investigative activities, which had been carried out with the participation of his lawyer, the applicant had maintained the same version of events and had acknowledged his guilt in respect of the double murder.
176. They further submitted that the applicant had neither complained of an initial restriction of his defence rights nor retracted his initial confession before the trial. His allegation of coercion on the part of the police, which had been made for the first time only after an inexplicable delay, had been duly examined by the domestic courts and dismissed as unsubstantiated. Likewise, no violation of the applicant’s defence rights had been established.
177. Lastly, the Government stated that there had been ample evidence of the applicant’s guilt, in addition to his initial confession.
178. As regards the alleged inability of the applicant’s wife to meet him in the Kyiv SIZO on 14 February and 10 March 2005, the Government argued that this complaint had been lodged out of the six-month period provided by Article 35 § 1 of the Convention, given that it had been set out for the first time in the applicant’s letter of 4 October 2005. They further submitted that the complaint had been, in any event, manifestly ill-founded, as the applicant had provided no evidence that his wife had ever requested (but been refused) a meeting with him on the cited dates. The Government stated that she had been granted permission to see the applicant in the routine manner, once she had requested this. They provided a number of copies of her requests, as well as requests made by other relatives; all had been granted by the authorities. The Government lastly argued that the applicant had failed to substantiate, both at the domestic level and before the Court, how the alleged failure of the applicant’s wife to see the applicant on the above-mentioned dates had affected his defence rights and the fairness of the proceedings as a whole.
179. As regards the applicant’s complaint concerning his allegedly ineffective legal representation by lawyers, the Government contended that during the pre-trial stage of the proceedings the applicant had been represented by the lawyer hired by his wife and that there had been no evidence that the applicant had ever expressed his dissatisfaction with the quality of the services provided.
2. The Court’s assessment
180. In so far as the applicant alleges that his hired lawyer, Mrs K., and three legal aid lawyers appointed by the State had been inefficient, the Court notes that this complaint is couched in rather general terms. The applicant provided no details as to how many lawyers in total represented him throughout the proceedings, within which periods, the reasons for his changing lawyers, and whether they were privately hired or appointed by the State; most importantly, he failed to give any substantiated examples of manifest negligence on their part. The Court, on the basis of the case file submitted to it, cannot find any evidence to support the applicant’s allegations.
181. As regards the alleged obstacles faced by the applicant’s wife as his lay representative, the Court recalls that the possibility, provided by the criminal procedural law, of being represented by relatives is complementary to the right to defence and cannot attract the protection of Article 6 § 3 (c) of the Convention (see Shabelnik v. Ukraine, no. 16404/03, § 39, 19 February 2009). The Court reiterates that the applicant was represented by professional lawyers (including ones of his own choosing) during the proceedings and that he had failed to substantiate his allegations of the lawyers’ misconduct.
182. In view of the above findings, the Court rejects those of the applicant’s complaints concerning the alleged ineffectiveness of his representation in the criminal proceedings against him. However, the Court also notes that the applicant’s complaint with respect to the restriction at an early stage of his right to legal assistance is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this complaint is not inadmissible on any other grounds and must therefore be declared admissible.
183. The fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (see Dayanyan v. Turkey, no. 7377/03, §§ 31-33, 13 October 2009, with further references therein). Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during questioning by police without access to a lawyer are used for a conviction. Accordingly, the test for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 256 and 257, 13 September 2016). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (ibid., § 265).
184. Turning to the present case, the Court notes that the parties disagreed on the date of the applicant’s apprehension and confession. The Court notes in this respect that, contrary to the Government’s arguments, the judgments by which the applicant was convicted refer to 30 January 2003 as the date of the applicant’s apprehension in Kharkiv. In any event, there is no need to resolve this factual dispute for the following reasons.
185. It was not disputed by the parties that when apprehended - whichever date is correct - the applicant had officially been accused of having committed a double murder and that his legal representation was thus mandatory under the domestic law (see paragraph 73 above). Likewise, it was not disputed that the applicant wrote his “statement of surrender and confession” after he had been in detention for at least one day.
186. The facts of the case further show that on 1 February 2003, before the applicant’s arrest was officially recorded, the applicant was informed in writing of his defence rights and expressed his wish to consult a lawyer before the first round of questioning (see paragraph 12 above). It was not disputed by the parties that the applicant never waived his right to be legally represented. However, on the same date, according to the Government, in the presence of a police officer and in the absence of a lawyer, he confessed to the double murder he had been accused of, and his confession had been accepted as evidence by the authorities.
187. While the Court is unable, on the basis of the documents before it, to decide if the applicant made those statements of his own free will or under pressure from the authorities, nothing suggests that the applicant was offered any legal assistance until 3 February 2003, when the defence lawyer hired by the applicant’s wife was admitted to the proceedings. On the facts, the Court does not discern any compelling reason for restricting the applicant’s right to a lawyer until that date.
188. The Court further considers that that restriction prejudiced the applicant’s defence rights as, when determining the applicant’s guilt on murder charges, the domestic court relied on the confession he had made at the initial stage of the investigation in the absence of a lawyer. Although there was other evidence against the applicant, the significant likely impact of his initial confession on the further development of the criminal proceedings against him and the fact that they clearly played an important role in the judgments of the domestic courts cannot be ignored by the Court (see Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010, and Ibrahim and Others, cited above, §§ 308 - 311).
189. In the light of the foregoing considerations, the Court finds that there has been a violation of Article 6 § 3 (c), in conjunction with Article 6 § 1 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
190. The applicant complained that the prosecutor’s giving information about his criminal case and the video recording of the crime scene reconstruction to a television channel had breached his right to respect for his private life, as guaranteed by Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
191. The Government submitted that the applicant’s complaint was unsubstantiated as he submitted no evidence that the alleged interference had taken place. They stated, in particular, that the applicant had failed to provide either a recording of the television programme at issue or details of its content, and had further failed to specify which element of his private life had been violated. The Government further submitted that despite their best efforts they had been unable to obtain recordings or transcripts of the television programme in question, in particular because the two-week time-limit set by domestic law for the storage of recordings of broadcast programmes had long since expired by the time the application had been communicated. They therefore stated there was no factual basis for finding a violation of the Convention.
192. As can be seen from the prosecutor’s replies to the applicant, the authorities did provide some information related to the case to the television channel. However, it remains unknown what kind of information was disclosed to the television channel. The applicant failed to support his allegations with appropriate evidence, having provided neither a recording nor a transcript of the television programme he referred to. He also failed to explain why, while stating that the television programme at issue had been regularly broadcast for the whole of 2003, neither he nor his lawyer or lay representative had attempted to record it or to contact the relevant media organisation in good time after the broadcasts to secure such recordings or transcripts (see, mutatis mutandis, Yuriy Shevchenko v. Ukraine (dec.), no. 24753/06, 10 May 2016).
193. In these circumstances, the Court dismisses this complaint as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
194. In addition to the above complaints, in his application form and ensuing correspondence, the applicant also complained under Article 2 of the Convention that his state of health had not been compatible with his detention; under Article 3 that his brother had been tortured by the police; that he had been treated as a convicted person before his conviction entered into force; that he had been brought to court hearings despite being sick; under Article 5 that his brother had been unlawfully detained by the police; under Article 6 that (a) the courts had wrongly interpreted evidence in the case, forged the documents in the file and failed to summon all witnesses against him upon his request; (b) judges of the Court of Appeal had extorted money from his family; (c) his request for reopening of the proceedings had been dismissed; (d) his complaints against prosecutors and judges and the Kyiv SIZO officials had been rejected; (e) the Constitutional Court had unlawfully rejected his request for certain legal provisions to be interpreted; (f) the presumption of his innocence had been infringed as he had been treated as guilty before his guilt had been established by the courts and because of a disclosure of information about his case to media; (g) he had not been able to meet his wife on certain dates or to speak with his lawyer confidentially during the hearings; under Article 7 that (a) his criminal prosecution had been groundless and (b) he had no prospects of release under domestic law; under Article 8 that (a) his children had not been allowed to visit him in detention; (b) he had been transferred to a prison located far from his home; (c) his family had been deprived of a breadwinner by his unfair conviction. Lastly, the applicant invoked Articles 1, 14, 17 and 34 of the Convention, as well as Article 2 of Protocol No. 7 and Article 1 of Protocol No. 12 to the Convention, in relation to the facts of the present case.
195. Having regard to the facts of the case, the submissions of the parties and the above findings under Article 3, Article 5 § 1 and Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention, the Court considers that the main legal questions in the present applications have been determined. It holds, therefore, that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Varnava and Others, cited above, §§ 210 - 211, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
196. 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.”
197. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage caused by the alleged violations of his rights.
198. The Government submitted that as the applicant’s rights had not been violated, his claim should be dismissed. In any event, they suggested that the applicant’s claim was exorbitant and unsubstantiated.
199. The Court observes that it has found violations of Articles 3, 5 § 1, and 6 §§ 1 and 3 (c) of the Convention in the present case. As regards the violation of this last provision, the Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 § 3 (c) in the present case does not imply that the applicant was wrongly convicted. Ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.
B. Costs and expenses
200. The applicant claimed EUR 850 in respect of his legal representation before the Court. He submitted no documents in support of his claim.
201. The Government did not comment on the above claim.
202. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant’s representative has already been paid EUR 850 under the Court’s legal aid scheme, the Court rejects the applicant’s claim.
C. Default interest
203. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the conditions of the applicant’s detention in the Kyiv SIZO and prison no. 47, the conditions of his detention on trial days, including keeping him in a metal cage at the courtroom, and during his transportation to and from court hearings, the lawfulness of the applicant’s detention from 25 March 2004 until 18 March 2005 and the initial restrictions of his defence rights admissible and the remainder of the communicated complaints inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Kyiv SIZO and prison no. 47;
3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention on trial days, including keeping him in a metal cage at the courtroom, and the conditions of his transportation to and from the court hearings;
4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention between 25 March 2004 and 18 March 2005;
5. Holds that there has been a violation of Article 6 § 3 (c), in conjunction with Article 6 § 1, of the Convention on account of the restriction at an early stage of the applicant’s right to legal assistance;
6. Holds that it is not necessary to examine the admissibility and merits of the other complaints;
(a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) 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, plus any tax that may be chargeable;
(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;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Faris
Acting Deputy Registrar President