CASE OF GERASHCHENKO v. UKRAINE

FIFTH SECTION

CASE OF GERASHCHENKO v. UKRAINE

(Application no. 20602/05)

JUDGMENT

STRASBOURG

7 November 2013

FINAL

07/02/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gerashchenko v. Ukraine,

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

Mark Villiger, President,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 20602/05) 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 Anatoliy Sergeyevich Gerashchenko (“the applicant”), on 19 July 2006 (see paragraphs 71-74 below).

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr Nazar Kulchytskyy.

3. The applicant alleged, in particular, that he had been ill-treated by the police, that a search of his home had been unlawful and arbitrary, that his pre-trial detention had been unlawful and unreasonably long and that it had lacked the requisite judicial review. He also complained that he had incriminated himself under duress and without legal assistance.

4. On 16 December 2009 the complaints regarding the applicant’s pre-trial detention and the police search at his home were communicated to the Government. The Court also raised ex officio and communicated the issue of Ukraine’s compliance with Articles 8 and 34 of the Convention on account of possible monitoring of the applicant’s correspondence with the Court.

5. On 15 March 2012 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the applicant’s complaints about his ill-treatment by the police and the violations of his right to legal assistance and the privilege against self-incrimination.

6. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1958 and is currently serving a prison sentence in Odessa following his conviction in criminal proceedings subsequent and unrelated to those examined in the present case.

A. Background to the case

8. On 4 December 2003 the applicant was convicted of possession of illegal drugs and sentenced to three years’ imprisonment. However, the sentence was suspended and he was put on probation. It was his third conviction for a drug-related offence.

9. On 12 May 2004 the Khadzhybeyivskyy Police Department instituted criminal proceedings against an individual, Mr B., on suspicion of possession of illegal drugs. In the course of the investigation Mr B. stated that he had bought the drugs from the applicant.

10. On 18 May 2004 the investigator applied to the Odessa Suvorivskyy District Court (hereafter – “the Suvorivskyy Court”), seeking authorisation of a search of the applicant’s home with a view to verifying Mr B.’s statement.

11. On 19 May 2004 the Suvorivskyy Court authorised the police search, having agreed that it was required for the criminal investigation to progress.

B. Events of 2 July 2004

12. According to the authorities, on 2 July 2004 an undercover police agent bought 1.9 millilitres of liquid opium from the applicant, having paid him 30 Ukrainian hryvnias (UAH) in banknotes previously marked with a luminous substance. The undercover operation was followed by a search, in the course of which the police seized the aforementioned banknotes from the applicant and equipment used for drug production that was found in his house. They also discovered a condom filled with liquid opium in his pocket.

13. According to the applicant, on 2 July 2004 while he was repairing his car in the yard, a group of policemen in plain clothes broke into his property without identifying themselves or giving reasons for their intrusion and started beating him. One of the officers grabbed the applicant’s hair and pulled him into the house, where the beating continued. The applicant was then handcuffed, after which the police planted the liquid opium and the pre-marked banknotes on him. The applicant further alleged that the house search had been conducted in a chaotic and violent manner. While it was going on, he had been lying on the floor, handcuffed, in one of the rooms. From time to time, a number of officers had approached him, sworn at him and beaten him.

14. The applicant’s parents and wife, as well as his acquaintance Mr Zh., who happened to be in the house at the time, witnessed the search.

15. The applicant gave a written explanation to the police in which he stated that he was a drug addict and produced liquid opium for his own use. While admitting that the police had found some liquid opium and poppy straw, as well as some money in his trousers, the applicant denied selling drugs.

16. According to the search report, signed by the police officers involved, two attesting witnesses and the applicant, the search lasted from 4 to 7.30 p.m.

17. The undercover agent reported in writing to his superior on the same date that he had received the pre-marked banknotes at 5 p.m. and that he had bought the liquid opium from the applicant at about 6 p.m.

18. After the search was completed, the police arrested the applicant and took him to Khadzhybeyivskyy Police Station “for further inquiries”.

C. Pre-trial investigation and related facts

19. On 3 July 2004 the applicant was examined by a neurosurgeon in the city hospital (see also paragraph 30 below). The medical certificate issued by the doctor read as follows:

“No fainting, nausea or vomiting reported. No symptoms of neurological injury. The skull and the cervical vertebrae are without injury. No acute neurosurgical injuries have been discovered. There is no need for neurosurgical treatment at the time of examination.”

20. There is no further information in the case file as to the circumstances of this examination of the applicant.

21. On 5 July 2004 a criminal case was initiated against the applicant on suspicion of the production and distribution of illegal drugs, and he was arrested as a criminal suspect.

22. On 7 July 2004 another criminal case was launched against him on suspicion of possession of drugs for his own consumption.

23. On the same date the above criminal cases were joined.

24. According to the Government, the applicant was informed of his right to have a lawyer on several occasions, but waived that right. The case file does not contain copies of those waivers.

25. As it transpires from the applicant’s medical file, a copy of which was provided to the Court by the Government, on 7 July 2004 an ambulance was called for the applicant following his complaints of pain in the lower right side of the back. The applicant explained that he had been beaten up during his arrest on 2 July 2004. He was taken to the Odessa Regional Hospital, where he was examined by an urologist and X-rayed. The diagnosis was a contusion of the right kidney, with no impairment of the kidney’s functions. It was also recommended that the applicant undergo an ultrasound examination.

26. On the same date the doctor in charge passed this information to the Khadzhybeyivskyy Police Department, where the officer on duty registered it in the logbook.

27. On 8 July 2004 the investigator applied to the Suvorivskyy Court for the applicant’s remand in custody as a preventive measure pending trial.

28. On the same date the Suvorivskyy Court ruled that further information about the applicant was required in order for it to decide on whether to order the preventive measure. As a result, it extended his arrest to ten days (calculated from 5 July 2004). As transpires from the court’s ruling, the applicant was legally represented at that stage.

29. On 14 July 2004 formal charges of possession, production and distribution of illegal drugs were brought against the applicant.

30. On the same date the applicant was questioned as an accused. The investigator referred to the applicant’s allegation of having been beaten up by the police and asked whether he had sought medical assistance. As per the minutes of the questioning session, the applicant replied as follows:

“Yes. After I had been taken to Khadzhybeyivskyy Police Station, they wanted to send me to a detention facility. As I had visible bodily injuries, I was taken to the [city hospital]. A neurosurgeon examined me and my head was X-rayed. While in the hospital, I was confused and I forgot to tell the doctor that I also had pain in the lower part of [my] back. On the following day I was taken to the detention facility. At the request of the convoy officers, I did not say anything about my injuries upon my arrival there. Today I still have blood in [my] urine and my kidneys hurt.”

31. On 15 July 2004 a lawyer (apparently hired by the applicant’s relatives) was admitted to represent the applicant in the proceedings.

32. On the same date the Suvorivskyy Court remanded the applicant in custody as a preventive measure pending trial, for an initial period of two months (until 5 September 2004). The court noted the seriousness of the charges against the applicant and his extensive criminal record. It considered that he might flee and/or reoffend if at liberty.

33. On 3 September 2004 the Suvorivskyy Court extended the term of the applicant’s pre-trial detention to three months (until 5 October 2004) upon the investigator’s application. It explained this decision by the necessity to conduct the following measures: the applicant’s examination with a view to establishing whether he was a drug addict; completion of the investigation; providing the applicant with the opportunity to study the case file; and approval of the indictment.

34. On 9 September 2004 the applicant was examined by an addiction psychiatrist, who concluded that he was an opium addict in partial recovery.

35. On 21 September 2004 the applicant asked the investigator to allow him to undergo a forensic medical examination, referring to the contusion of his right kidney which he claimed to have sustained as a result of his beating by the police on 2 July 2004. He noted that he had repeatedly asked to be examined.

36. On 30 September 2004 the investigator rejected the above request referring to findings made by the Suvorivskyy District Prosecutor’s Office on an unspecified date, according to which the applicant had been slandering the police officers with a view to evading criminal liability.

37. On 5 October 2004 the applicant was indicted. As noted in the indictment, the investigator had conducted confrontations between the applicant and the police officers involved in his arrest, during which no claims of ill-treatment had been made. The indictment also referred to statements made by the applicant’s acquaintance, Mr Zh., who had been at the applicant’s home at the time of the search (see paragraph 14 above). According to Mr Zh., the police officers’ behaviour on 2 July 2004 had been proper and he had not witnessed any violence towards the applicant or any of his family members.

D. Trial

38. On 28 October 2004 the Suvorivskyy Court held a preparatory hearing, during which it decided to extend the applicant’s detention as a preventive measure pending the pronouncement of the verdict.

39. By a judgment of 14 March 2005, the Suvorivskyy Court found the applicant guilty of the illegal possession, production and distribution of drugs and sentenced him to five years and two months’ imprisonment (which included the unserved part of the sentence imposed pursuant to his conviction on 4 December 2003 – see paragraph 8 above). It also ordered the confiscation of all his personal property. The court based its findings mainly on the evidence obtained through the undercover operation and the searches of the applicant’s house and person carried out on 2 July 2004. It heard the police officers involved, the attesting witnesses, and three of the applicant’s neighbours. During the trial, Mr Zh. withdrew his statements given in the course of the pre-trial investigation (see paragraphs 14 and 37 above), claiming that they had been extracted from him under duress and submitting that he was not aware of any drug production or distribution by the applicant. He also maintained that he had witnessed the applicant being beaten by the police on 2 July 2004. The court dismissed this submission as untrue. It also considered the statement of the applicant’s father that he had seen a police officer planting drugs on the applicant to be untrue.

40. On the same date the Suvorivskyy Court issued a separate ruling by which it held that the monitoring of the applicant’s conduct by the local police department during his probation had been inadequate.

41. On 20 December 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the aforementioned judgment on the applicant’s appeal and remitted the case back to the first-instance court for fresh examination. It referred, in particular, to a number of factual discrepancies which had to be reconciled. Thus, according to the search report, the search of the applicant’s house had lasted from 4 p.m. till 7.30 p.m. on 2 July 2004. At the same time, it was indicated in the report of the undercover agent that he had received the pre-marked banknotes for the operation at about 5 p.m. and had bought liquid opium from the applicant at about 6 p.m. In other words, it appeared that the search had started about two hours before the undercover drug purchase took place. There were also discrepancies in the statements of the attesting witnesses, one of whom had submitted that the applicant had been searched in the house, while the other had noted that his body search had taken place outside, near the police car. The appellate court also noted that the applicant’s allegations of the fabrication of evidence and his beating had not been thoroughly investigated.

42. Furthermore, the Court of Appeal criticised the trial court for its failure to “assess the fact that the search had been conducted on the basis of a search warrant of 19 May 2004, which had been issued at the investigator’s request concerning a different criminal case initiated a long time before the criminal investigation [against the applicant] was launched”.

43. On 3 April 2006 the applicant applied to the Suvorivskyy Court for his release subject to an undertaking not to abscond.

44. On 19 April 2006 the court rejected this application, having noted that the applicant was suspected of a crime punishable with more than three years’ imprisonment and that he already had three drug-related convictions to his name.

45. On 6 November 2006 the applicant again applied to be released.

46. On 15 November 2006 the Suvorivskyy Court replied to him by letter, stating as follows:

“Your request for a change of the preventive measure of 6 November 2006 has been examined. Please be informed that you previously submitted a similar request, which was rejected by a ruling of [this court] on 19 April 2006.

Given the fact that similar requests on your part have been responded to, the present request ... will be archived (“списати в наряд суду”)”.

47. On 6 June 2007 the Suvorivskyy Court issued a new judgment in which it made the same findings as before. As noted therein, the two witnesses had testified that the applicant had been subjected to a body search outside the house. As to the report of the undercover agent, it was not a valid procedural document and therefore could not be relied on. The judgment was silent as to why the search of the applicant’s house had been conducted on the basis of a search warrant issued two months earlier and relating to a different criminal case.

48. The Suvorivskyy Court also held as follows in the operative part of its judgment:

“To maintain [the applicant’s] detention as a preventive measure pending the entry into force of the verdict.

To calculate the sentence from 2 July 2004, that is from the date of [the applicant’s] actual arrest.”

49. The applicant and the lawyer acting on his behalf appealed against the judgment of 6 June 2007. The lawyer submitted, in particular, that the applicant’s allegation of his beating by the police on 2 July 2004 had not been duly addressed.

50. On 4 December 2007 the Court of Appeal upheld the applicant’s conviction. It noted that the applicant had chosen “the tactics of denial of the events and manipulating the established facts” by challenging the lawfulness of the police officers’ actions during his arrest. Similarly to the first-instance court, the appellate court did not address the issue of the time and context of the search warrant, on the basis of which the applicant’s house had been searched on 2 July 2004.

51. On 22 March, 28 May, 11 June and 9 July 2008 the applicant lodged cassation appeals with the Supreme Court. All of them were returned to him for his failure to comply with procedural formalities, such as putting a date under his cassation appeal, signing it, or attaching a duly certified copy of the judicial decisions challenged. On three occasions the applicant was invited to rectify the indicated shortcomings. As he failed to comply, on 7 August 2008 the Supreme Court dismissed his cassation appeal without examination on the merits.

E. The applicant’s correspondence with the Court

52. On 13 May 2005 the applicant wrote his first letter to the Court, in which he enquired about the procedure of introduction of an application before the Court.

53. On 15 July 2005 he further wrote to the Court that he considered his case yet premature, but that he planned to introduce in the future complaints under Article 5 § 3 and Article 6 § 3 (c) and (d) of the Convention.

54. On 3 August 2005 the Registry of the Court warned the applicant that his file would be destroyed if he did not submit an application form within a year.

55. On 19 July 2006 the applicant submitted a completed application form, which he subsequently supplemented on a number of occasions.

56. The applicant’s letters to the Court sent from the pre-trial detention centre (SIZO) on 13 May and 15 July 2005, 19 July 2006, and 7 May, 18 July and 30 November 2007, bore the SIZO stamp on their first page with a handwritten date. The first page of his letters sent to the Court from prison on 4 June 2008 and 20 January 2009 bore the stamp of the prison.

57. On 22 January, 27 July and 12 September 2007 the Registry of the Court asked the applicant to submit copies of a number of documents.

58. In his subsequent correspondence the applicant confirmed receipt of the Registry’s letters of 22 January and 27 July, but never referred to that of 12 September 2007 and did not comply with the request contained therein.

59. According to the information provided by the Government, there was no incoming correspondence for the applicant registered in the SIZO between 10 August and 10 November 2007.

60. On 20 January 2009 the applicant informed the Registry that he had sent a letter to the Court on 21 October 2008, indicating the number it had been assigned by the prison administration. He also noted that the administration charged money for sending correspondence to the Court, which he could not afford. The applicant therefore stated that he had had to send his letter of 20 January 2009 through his mother. However, that letter arrived at the Court directly from the prison, accompanied by its cover letter and with the prison stamp on the first page.

61. The Court did not receive the applicant’s letter of 21 October 2008. According to the Government, it was dispatched by the prison administration on the same day as it was submitted by the applicant for postage.

F. Other relevant facts

62. On 4 August 2009 the applicant was released on parole.

63. On an unspecified date (apparently after the case had been communicated to the Government and the Government had tried to collect the relevant information), the SIZO issued an information note stating that the logbook of detainees’ complaints for 2004 and 2005 had been destroyed on 29 January 2009.

64. On 14 November 2011 the Suvorivskyy District Prosecutor’s Office issued an information note stating that the materials of the investigation into the applicant’s allegation of ill-treatment (2005) had been destroyed on 20 January 2010 after the expiry of the five-year storage period envisaged by the recordkeeping guidelines approved by the General Prosecutor’s Office on 28 December 2002.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Search of home and other property

65. Article 30 of the Constitution (1996) guarantees the inviolability of everyone’s home. It prohibits entry into the home or other property of a person, and the examination or search thereof, other than pursuant to a reasoned court decision.

66. Article 311 of the Civil Code (2003) reiterates the above constitutional principles.

67. Article 177 of the Code of Criminal Procedure (1960) requires that for a search of a house or other property to be conducted, there must be sufficient grounds to believe that the items to be searched for might be found there and a reasoned court decision authorising the search. Such a decision by a court cannot be appealed against. Article 183 of the Code requires the investigating officer in charge of the search to serve the search warrant on the person(s) occupying the relevant premises. If the items searched for are not given to the investigating officer voluntarily, the latter must conduct the search forcibly.

68. The relevant provisions of the Law “On Search and Seizure Activities” (1992) are summarised in the Volokhy v. Ukraine judgment (no. 23543/02, § 27, 2 November 2006).

B. Pre-trial detention

69. Article 29 of the Constitution is cited in the judgment on the case of Svershov v. Ukraine (no. 35231/02, § 39, 27 November 2008).

70. The relevant provisions of the Code of Criminal Procedure (CCP) are to be found in the judgments in the following cases: Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts); Kucheruk v. Ukraine, no. 2570/04, §§ 67-69, 6 September 2007; and Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 24-25, 12 March 2009.

THE LAW

I. DATE OF INTRODUCTION OF THE APPLICATION

71. The Court notes that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, it normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 17 and 19, 1 June 2010).

72. The Court notes that in the present case the applicant’s first communication with the Court on 13 May 2005 was confined to his enquiry about the procedure of introduction of an application before the Court. As to his subsequent letter to the Court of 15 July 2005, the applicant merely referred to his plans to submit some complaints in the future considering his case to be premature at the time (see paragraphs 52-53 above).

73. The Court observes that only on 19 July 2006 the applicant submitted a completed application form (see paragraph 55 above).

74. It therefore considers this to be the date of introduction of the present application.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

75. The applicant alleged that he had been beaten up by the police on 2 July 2004. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

77. The applicant complained that on 2 July 2004 he had been beaten up by the police and that, as a result, he had sustained a contusion of the right kidney. In substantiation, he referred to the medical certificate of 7 July 2004 (see paragraph 25 above).

78. The Government denied this allegation. They noted that on 3 and 7 July 2004 the applicant had undergone medical examinations in civilian hospitals, with no injuries having been discovered. They further pointed out that, even though the applicant had mentioned to the doctor on 7 July 2004 that he had been ill-treated by the police on 2 July 2004, he had not specified “the circumstances of that ill-treatment”. Lastly, the Government noted that the investigation file had been destroyed following the expiry of the storage time-limits (see paragraph 60 above). In sum, they contended that the applicant’s complaint should be dismissed as unsubstantiated.

79. 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, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).

80. Turning to the present case, the Court observes that it communicated the case to the respondent Government on 16 December 2009 albeit without including the applicant’s complaint under Article 3 of the Convention, this complaint being communicated later (see paragraphs 4 and 5 above). It notes that on 20 January 2010 the domestic authorities had destroyed the file on the investigation of the applicant’s allegation of ill-treatment by the police (see paragraph 64 above). The Court considers it unacceptable that the authorities would destroy any documents relevant to what transpired during an applicant’s detention at a time after a complaint concerning that detention had been communicated to the respondent Government and before any part of an applicant’s case had been declared inadmissible.

81. The Court also emphasises that the obligation on the part of the domestic authorities to investigate a credible allegation of ill-treatment by police does not derive from the purported victim’s attitude, but is to be undertaken by virtue of Article 3 of the Convention (see Arat v. Turkey, no. 10309/03, § 43, 10 November 2009, and Teslenko v. Ukraine, no. 55528/08, § 117, 20 December 2011). In circumstances where it is clear that the file investigating the applicant’s complaints of ill-treatment has been destroyed, the Court is precluded from considering the extent to which, if at all, the authorities complied with their procedural obligations under Article 3. That said, there is nothing to indicate that they did so.

82. In the present case, because of the destruction of the investigation file, the Court is also precluded from using materials that were on that file in assessing the applicant’s substantive complaints of ill-treatment. It remains to be seen to what extent this will hamper the examination of the applicant’s substantive complaint.

83. The Court observes that the parties are in dispute as to whether the applicant sustained any injuries which might be attributable to the police.

84. It notes that the Government relied, in particular, on the medical certificate issued by a neurosurgeon on 3 July 2004 reporting the absence of any injuries to the applicant in so far as his area of competence was concerned (see paragraph 19 above). The Court sees no reasons for questioning this finding. It notes, however, that the scope of that examination was quite limited, as the doctor was not called upon to evaluate the applicant’s general state of health or to establish the presence or absence of any injuries on him other than those of a neurological nature. The reasons for that particular medical examination on the day following the applicant’s de facto, but apparently undocumented, detention (see, in particular, paragraphs 18, 27-28 and 48 above) remain unknown.

85. The Court further notes that both parties relied on the medical certificate of 7 July 2004 in support of their argument. Having regard to the unambiguous diagnosis of a contusion of the applicant’s right kidney contained in that certificate, the Court does not share the Government’s opinion that it can be regarded as disproving the applicant’s allegation of ill-treatment. Furthermore, the Court does not lose sight of the fact that the doctor who reached the diagnosis forwarded the information to the police (see paragraph 26 above). This indicates that he considered the applicant’s allegation plausible.

86. On the facts of the case, it is established that on 2 July 2004 the applicant was arrested and on 7 July 2004 he was diagnosed with a contusion of the right kidney (see paragraphs 18 and 25 above). It was not suggested at any point that prior to his arrest the applicant had been involved in any violence that could have resulted in such an injury. It is also observed that no plausible alternative version of events such as would explain the cause of the applicant’s injury has been advanced by the domestic authorities at any stage. Therefore, it can be assumed that the injury sustained by the applicant was caused during or after his arrest by the police (see and compare with Kulish v. Ukraine, no. 35093/07, § 49, 21 June 2012).

87. The Court notes from the file that the applicant’s complaint about his ill treatment would appear to have first been made some five days after the assault, when he was examined by a doctor. Under the circumstances he might well have been discouraged from voicing his allegations by the very fact of being under the control of those whom he accused of ill-treatment (see Nadrosov v. Russia, no. 9297/02, § 33, 31 July 2008, and Dvalishvili v. Georgia, no. 19634/07, § 44, 18 December 2012).

88. In sum, the Court considers that there has been a violation of Article 3 of the Convention in that the applicant was subjected to ill-treatment by police.

III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

89. The applicant complained under Article 5 § 1 (c) of the Convention that his detention from 20 December 2005 to 6 June 2007 had been unlawful. He further complained under Article 5 § 3 that the overall length of his pre-trial detention had been unreasonable. Lastly, the applicant complained under Article 5 § 4 that he had been denied adequate judicial review of its lawfulness. The provisions relied on read 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; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

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.

B. Merits

1. The parties’ submissions

91. The applicant did not submit any observations on the merits of these complaints within the established time-limits.

92. The Government submitted that the applicant’s detention from 20 December 2005 to 6 June 2007 had been in compliance with applicable domestic law. As to the length of his pre-trial detention, which, according to the Government’s calculation, had been two years, one month and twenty-six days, they considered it reasonable. The Government drew the Court’s attention to the seriousness of the charges against the applicant and his criminal record. In their opinion, there had been sufficient and relevant reasons for the domestic courts to remand the applicant in custody and to uphold his continued detention. Lastly, the Government submitted that the applicant had had – and had used on many occasions – the ability to seek judicial review of the lawfulness of his pre-trial detention by way of lodging an application for release. In their view, the applications for release made by the applicant had been duly examined.

2. The Court’s assessment

(a) Article 5 § 1 (c)

93. The Court notes that on 20 December 2005 the Court of Appeal, having quashed the applicant’s conviction, ordered his retrial and further detention, yet provided no reasons for this detention and set no time-limit on it. It lasted until his subsequent conviction by the first-instance court on 6 June 2007.

94. The Court has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention (see Kondratyev v. Ukraine, no. 5203/09, §§ 109-112, 15 December 2011, as a recent reference containing a brief overview of the relevant cases against Ukraine).

95. There are no arguments in this case capable of persuading the Court to reach a different conclusion.

96. There has accordingly been a violation of Article 5 § 1 (c) of the Convention in this regard.

(b) Article 5 § 3

97. The Court notes that the applicant remained in continuous detention following his arrest on 2 July 2004. With the periods when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention having been deducted from the total time that he was deprived of his liberty, the overall period to be taken into consideration in the instant case is two years, two months and eight days (from 2 July 2004 to 14 March 2005 and from 20 December 2005 to 6 June 2007).

98. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000‑XI; and Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).

99. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000‑IV; and Idalov, cited above, § 140). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000).

100. The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of a suspect does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the public interest which justifies a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see Idalov, cited above, § 141, referring, by way of example, to McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X).

101. This means that, at every occasion when a court has to decide whether or not to extend a pre-trial detention, it has to make a fresh assessment of the justification for maintaining the detention. Where the court maintains the detention using each time similar, not to say stereotyped, wording, without showing that it actually pays attention to the passage of time, the requirements of Article 5 § 3 of the Convention are not met (see Mansur v. Turkey, 8 June 1995, § 55, Series A no. 319 B; Svipsta v. Latvia, no. 66820/01, § 109, 9 March 2006; and Tiron v. Romania, no. 17689/03, § 39, 7 July 2009).

102. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, even for lengthy periods of detention, the domestic courts referred to the same set of grounds, if any, throughout the period of the applicant’s detention (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 59-61, 6 November 2008, and Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011).

103. In the present case the seriousness of the charges against the applicant and the risk of his absconding or reoffending had been advanced in the initial order for his detention. This reasoning did not evolve with the passage of time. Nor did the domestic courts consider at any stage any alternative preventive measure instead of detention on remand.

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

(c) Article 5 § 4

105. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the court with jurisdiction has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002‑II (extracts)).

106. The Court observes that the domestic court refused to look again into the reasonableness of the applicant’s detention on the grounds that it had ruled on the lawfulness of his detention on a previous occasion (see paragraph 46 above), therefore denying the applicant’s right to a review of the lawfulness of his detention as guaranteed by Article 5 § 4 (see Yeloyev v. Ukraine, cited above, § 65). Moreover, the Court held in its judgment in the case of Kharchenko v. Ukraine, cited above, that this problem is of a systemic nature stemming from legal lacunae and inadequate administrative practice (§§ 100 and 101).

107. It considers that the same findings are pertinent in the present case.

108. There has therefore been a violation of Article 5 § 4 too.

IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

109. The applicant raised a number of complaints under Article 6 §§ 1, 3 (b), (c) and (d) of the Convention about the alleged unfairness and length of his trial. The provisions relied on read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time 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;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A. Complaints as to the fairness of the criminal proceedings against the applicant

110. The applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention as regards the alleged violation of his right to the privilege against self-incrimination and early access to a lawyer were communicated to the Government.

111. The Government submitted that the applicant had failed to duly raise these issues in his cassation appeal and could not therefore be regarded as having exhausted domestic remedies.

112. The applicant disagreed. He admitted that his cassation appeal had not been accepted for examination by the Supreme Court on the grounds that it had not complied with various formal requirements (see paragraph 51 above). The applicant, however, expressed suspicion that the letters from the Supreme Court indicating certain shortcomings in his cassation appeal had in fact been forged by the judge of the first-instance court dealing with his case, who he claimed had wished to prevent him bringing the case before the Supreme Court.

113. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). A failure to comply with such requirements may lead to a finding that domestic remedies have not been exhausted (see, among many other authorities, MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005‑XI).

114. At the same time, the Court notes that only effective remedies are required to be exhausted (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)).

115. The Court has already held that an appeal in cassation to the Supreme Court (under the criminal procedural legislation in force at the material time) is considered an effective remedy for complaints of unfair criminal proceedings (see, mutatis mutandis, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004, and Borotyuk v. Ukraine, no. 33579/04, § 73, 16 December 2010). The applicant could reasonably have expected the domestic courts to deal with his complaint and to remedy any violation, in particular, of his right to mount a defence, if found (see Shalimov v. Ukraine, no. 20808/02, § 62, 4 March 2010, and Borotyuk v. Ukraine, cited above, § 73).

116. It follows that in the present case, in order to comply with the exhaustion requirement, the applicant should have raised his complaints concerning the alleged unfairness of his trial in a cassation appeal to the Supreme Court.

117. The Court notes, however, that the applicant failed to comply with the formalities existing in domestic law for introducing his appeal in cassation. The only explanation given by him for this failure was that he suspected forgery of documents by a judge of the first-instance court (see paragraph 112 above). In the absence of any direct or indirect evidence in support of this submission, the Court cannot be satisfied as to the veracity of this explanation. It does not lose sight of the absence of any submissions by the applicant that the guidelines given to him as regards the shortcomings in his cassation appeals and the ways of their rectification were unreasonable or impossible to comply with, or that he was precluded from complying with them by a lack of legal assistance or owing to any other specific circumstances.

118. In sum, the Court considers that the applicant’s complaints under this head, both those which were communicated to the respondent Government and those which were not (see paragraphs 109 and 110 above), should be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

B. Complaint as to the length of the trial

119. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).

120. The Court notes that the criminal proceedings against the applicant in the present case lasted less than four years for the pre-trial investigation and the judicial proceedings before the courts of three levels of jurisdiction, including one remittal of the case by the appellate court to the first-instance court. The Court does not consider the length of these proceedings as unreasonable.

121. It therefore rejects this complaint as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS HOME

122. The applicant complained that the police search of his house on 2 July 2004 had breached his right to respect for his home under Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his ... home ...

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.”

A. Admissibility

123. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

124. The applicant maintained his complaint in general terms.

125. The Government admitted that there had been an interference with the applicant’s right to respect for his home. However, they considered it to have been in compliance with the requirements of paragraph 2 of Article 8 of the Convention. The Government observed that the search of the applicant’s home had been based on the judicial ruling of 19 May 2004 and that it had been necessary for the prevention of crime. While the aforementioned ruling had concerned a criminal investigation in respect of a different person, Mr B., it had become known to the investigator that the applicant might have been involved in the production and sale of illegal drugs. Accordingly, it had been legitimate to verify this information by way of a search. Lastly, the Government emphasised that the lawfulness of the search in question had been reaffirmed by the courts of three levels of jurisdiction in the course of the trial and appeal proceedings.

126. The Court finds, and this is common ground between the parties, that the search complained of amounted to an interference with the applicant’s right to respect for his home.

127. The Court next observes that the search in question had a legal basis in domestic law, namely Article 177 of the Code of Criminal Procedure (see paragraph 67 above).

128. Furthermore, it was ordered in the course of a criminal investigation into the possession of illegal drugs (see paragraph 11 above). It therefore served a legitimate aim, namely the prevention of crime. It remains to be examined whether the interference was “necessary in a democratic society”.

129. The Court reiterates that where States consider it necessary to resort to measures such as searches of residential premises in order to obtain evidence of offences, it will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle has been adhered to. The Court will also explore the availability of effective safeguards against abuse or arbitrariness in domestic law and check how those safeguards operated in the specific case under examination. Elements to be taken into consideration in this regard include, but are not limited to, the manner and circumstances in which the order was issued, in particular whether there was further evidence available at that time, and the content and scope of the order, having particular regard to the safeguards taken in order to confine the impact of the measure to reasonable bounds (see Buck v. Germany, no. 41604/98, §§ 44-45, ECHR 2005‑IV).

130. The Court notes that in the present case the search of the applicant’s home was conducted under a warrant issued by the Suvorivskyy Court and was therefore subject to judicial scrutiny. However, this mere fact will not in itself necessarily amount to a sufficient safeguard against abuse (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004). In assessing whether the State’s interference was proportionate, the Court must consider the particular circumstances of each case (see, for example, Camenzind v. Switzerland, 16 December 1997, § 45, Reports of Judgments and Decisions 1997‑VIII).

131. The impugned search took place in the course of a criminal investigation concerning an individual, Mr B., who was suspected of possessing illegal drugs, following his allegation that he had bought drugs from the applicant (see paragraph 9 above). At that stage, there was no criminal investigation pending in respect of the suspicion of the applicant’s possession or distribution of illegal drugs. The Court accepts that the task of uncovering evidence of a crime might necessitate a search of a third party’s premises (see and compare with Buck v. Germany, cited above, § 48). This factor is, however, to be borne in mind in applying the proportionality test (see also Ratushna v. Ukraine, no. 17318/06, § 74, 2 December 2010).

132. The Court notes that, in order to grant a warrant for a search of a house or other property, the Ukrainian courts are required by law to be satisfied that there are sufficient grounds to believe that the items to be searched for might be found there (see paragraph 67 above).

133. The Court has no reasons to doubt that when issuing the search warrant on 19 May 2004 the Suvorivskyy Court had some evidence before it suggesting that the applicant could have had drugs in his possession with the intent to supply them. Namely, there had been an allegation made that the applicant was selling drugs. This warranted investigation, possibly by way of a search of his house.

134. The Court observes, however, that the police only searched the applicant’s house on the basis of the aforementioned warrant one-and-a-half months later. No explanation for this delay is known to have been given. Moreover, although the Court of Appeal expressly criticised the failure of the trial court to assess the timing and the context of the search warrant in question when quashing the judgment of 14 May 2005 (see paragraph 42 above), this issue was completely disregarded in the subsequent judicial decisions delivered in the criminal proceedings against the applicant (see paragraphs 47 and 50 above).

135. The Court does not lose sight of the fact that the impugned search took place almost immediately after an undercover operation (even though the exact timing of the events was in dispute – see paragraph 41 above). This might have implied a certain urgency with a view to securing evidence of a crime (see and compare with Mastepan v. Russia, no. 3708/03, §§ 41 and 44, 14 January 2010). In this case, however, the reliance of the investigating authorities on the search warrant of 19 May 2004 does not demonstrate such urgency.

136. Lastly, the Court cannot overlook certain factual discrepancies around the conduct of the search, which were not reconciled in a convincing manner (see paragraphs 16-17, 41 and 47 above).

137. Regard being had to the foregoing, the Court does not consider that the interference with the applicant’s right to respect for his home was proportionate to the legitimate aim pursued.

138. There has therefore been a violation of Article 8 of the Convention in this regard.

VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS CORRESPONDENCE

139. Having regard to the fact that a number of letters from the applicant to the Court bore the stamp of the detention facilities on the first page, the Court considered it appropriate to raise, of its own motion, the issue of Ukraine’s compliance with Article 8 of the Convention on account of the monitoring of the applicant’s correspondence with the Court (see Glinov v. Ukraine, no. 13693/05, § 42, 19 November 2009). This Article, insofar as relevant, reads as follows:

“1. Everyone has the right to respect for his ... correspondence.

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.”

140. The Government contended that this part of the application should be rejected: for the applicant’s failure to comply with the six-month time-limit in so far as his complaint concerned the alleged interference by the administration of the detention facilities with his correspondence before 21 December 2005 (the entry into force of legislative amendments prohibiting monitoring of detainees’ correspondence with the Court); and for non-exhaustion of domestic remedies as regards the alleged monitoring of his correspondence with the Court thereafter.

141. The Government further contended that the applicant had submitted his letters addressed to the Court to the administration for dispatching without any envelopes and that his correspondence had been sent at the expense of the administration. Accordingly, the staff members in charge had had no other option than to put a stamp on the first page of every letter. This did not, however, mean that they had read the correspondence, as the applicant had been able to immediately seal the envelopes himself.

142. The applicant did not comment.

143. The Court does not consider it necessary to decide on the Government’s objections since this complaint is in any event inadmissible.

144. The Court notes that six of the applicant’s letters sent to it from the SIZO and two letters sent from the prison had the SIZO or the prison stamp on their first page (see paragraph 56 above). However, unlike in the case of Glinov, cited above, where the administration of the detention facilities accompanied the applicant’s letters to the Court by brief summaries of their contents (§§ 27, 28 and 55), no such summaries were attached to the applicant’s letters in the present case. Nor did the applicant refer to any factual details suggesting that the administration had in fact read his correspondence.

145. The Court does not consider implausible the Government’s submission that the applicant had submitted his correspondence to the administration without envelopes. Accordingly, the mere fact that the first page of his letters was stamped does not automatically imply monitoring of his correspondence.

146. In sum, having regard to all the circumstances of this case, the Court is not convinced that there was any interference with the applicant’s right to respect for his correspondence under Article 8 in the present case.

147. It therefore considers that this part of the application discloses no appearance of a violation of that provision, and dismisses it as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

VII. ALLEGED INTERFERENCE WITH THE APPLICANT’S RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION

148. Lastly, the applicant complained that the prison administration had hindered his communication with the Court by charging him for postage and that, as a result, he had been obliged to send correspondence to the Court – namely, the letter of 20 January 2009 – through his mother. He also complained that he had never received the Court’s letter of 12 September 2007 and that his letter of 21 October 2008 had not reached the Court.

The Court considers it appropriate to examine the above complaint under Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

149. The Government submitted that the administration of the detention facilities had not hindered the applicant’s communication with the Court in any way, having dispatched his letters and having passed on those received from the Court addressed to him without delay. Moreover, they pointed out that it had been the administration that had borne the postage costs.

150. The Court reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and its Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringement in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). The Court also underlines that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996-IV; Kurt v. Turkey, 25 May 1998, § 159, Reports 1998-III; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Şarlı v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002).

151. Turning to the substance of the applicant’s complaint, the Court notes that one of the letters which the applicant sent to the Court and one letter from the Court addressed to him did not arrive. It is possible that this was due to a technical error at some stage of their dispatch or delivery. However, the Court is unable to find on that basis alone that the Ukrainian authorities deliberately stopped the applicant’s letter or failed to ensure that it was duly dispatched or that they deliberately withheld the Court’s letter addressed to him (see Vasiliy Ivashchenko v. Ukraine, no. 760/03, § 115, 26 July 2012, with further references).

152. As to the applicant’s submission that he had been obliged to send his letter of 20 January 2009 through his mother, it appears that he is mistaken in this regard as there is evidence that this letter was dispatched for postage to the Court directly from the prison (see paragraph 60 above).

153. Lastly, as regards the applicant’s complaint that he could not afford to pay for postage, the Court notes that it is not supported by any factual details, such as, for example, information relating to the applicant’s financial situation and the relevant postage costs.

154. In sum, the Court concludes that the respondent State did not fail to comply with its obligations under Article 34 of the Convention.

VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

155. The applicant complained under Article 5 § 1 of the Convention that the entire period of his detention had been unlawful, in addition to that from 20 December 2005 to 6 June 2007 (see paragraph 89 above). He further complained under Article 1 of Protocol No. 1 to the Convention that the police had damaged some of his property during the search on 2 July 2004. The applicant next complained in general terms and without referring to any provision of the Convention that he had received poor medical care in prison. Lastly, he cited Articles 7 and 17 of the Convention and Article 3 of Protocol No. 7 to the Convention without being more specific.

156. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that there is a failure to substantiate those claims and thus concludes that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention.

IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION

157. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

158. The applicant claimed 2,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

159. The Government contested the claim as excessive and irrelevant.

160. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, taking into account the nature of the violations found and ruling on an equitable basis, it awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

161. The applicant did not make any claim under this head. The Court therefore makes no award.

C. Default interest

162. 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 applicant’s alleged ill-treatment by the police, the lawfulness of his detention from 20 December 2005 to 6 June 2007, the length of the entire period of his pre-trial detention and the alleged lack of adequate judicial review of its lawfulness, and the alleged infringement of his right to respect for his home admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s ill-treatment by the police;

3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention as regards the applicant’s detention from 20 December 2005 to 6 June 2007;

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

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

6. Holds that there has been a violation of Article 8 of the Convention on account of the police search of the applicant’s home on 2 July 2004;

7. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention;

8. Holds

(a) that the respondent State is pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;

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

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

Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

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