CASE OF GORBATENKO v. UKRAINE

FIFTH SECTION

CASE OF GORBATENKO v. UKRAINE

(Application no. 25209/06)

JUDGMENT

This version was rectified on 4 March 2014

under Rule 81 of the Rules of Court.

STRASBOURG

28 November 2013

FINAL

28/02/2014

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

In the case of Gorbatenko v. Ukraine,

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

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 5 November 2013,

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

PROCEDURE

1. The case originated in an application (no. 25209/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Pavel Vladimirovich Gorbatenko (“the applicant”), on 9 June 2006.

2. The applicant, who had been granted legal aid, was represented by Ms Y.N. Ashchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Nazar Kulchytskyy.

3. The applicant complained, in particular, about the conditions of his detention in the Sevastopol ITT, the Dnipropetrovsk SIZO and the Kharkiv SIZO. He also complained about the length of the first set of criminal proceedings against him.

4. On 1 August 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and is currently serving a sentence of life imprisonment in the Kharkiv Pre-Trial Detention Centre (SIZO).

6. In November 2003 the applicant met and started cohabiting with Ms T.

A. First set of criminal proceedings against the applicant

7. On 2 June 2004 Mr D., a relative of Ms T., complained to the police that the applicant had robbed him of 1,100 Ukrainian hryvnias (UAH) (equivalent to about 165 euros (EUR)).

8. In late July 2004 (the exact date is unknown) a TV set, an iron and a radio were stolen from the household of Ms G., an acquaintance of Ms T. Ms G. was away on a trip at the time and discovered the theft upon her return home a few days later. As the investigation later established, the theft had been committed by the applicant and Ms T.

9. On 8 August 2004 Mr D. brought another complaint before the police, this time that the applicant and Ms T. had robbed him of UAH 2,700 (equivalent to about EUR 400) and two electric kettles.

10. The three incidents in question took place in the Kharkiv region. The investigations into the incidents were joined into one criminal case against the applicant and Ms T. on suspicion of theft and robbery. At first, the suspects’ whereabouts could not be identified.

11. In August 2004 the applicant was arrested by the Kharkiv police. The exact date of his arrest is unclear. According to the applicant, it was 10 August 2004. He did not, however, specify the time or circumstances of his arrest. As indicated by the investigator in his application for the applicant’s pre-trial detention (see paragraph 13 below), it was 11 August 2004. This was also the date from which the term of the applicant’s imprisonment was calculated according to the verdict of 13 April 2005 (see paragraph 59 below). However, according to the explanations of officers from the Kharkiv Police Department, it was on 12 August 2004, at about 2 a.m. (see paragraph 67 below). Also, as indicated in the verdict of 9 November 2011, the applicant was arrested on 12 August (see paragraph 29 below). There is no copy of the arrest report in the case file before the Court.

12. According to the applicant, the Kharkiv police officers ill-treated him in the Merefa Temporary Detention Facility (ITT) with a view to making him confess to the alleged theft and robberies (for a more detailed account see paragraph 63 below). As a result, the applicant made a statement of confession, allegedly as dictated by the investigator.

13. On 13 August 2004 the Kharkiv District Court – in a hearing which the applicant attended – remanded him in custody pending trial, having allowed an application to that end by the investigator.

14. On the same date the applicant had his procedural rights explained to him and signed a waiver of legal assistance.

15. On 17 August 2004 Ms T. was detained, too. According to her statements, she and the applicant had committed the theft in the household of Ms G. and the second robbery of Mr D. As to the first robbery, Ms T. submitted that, as far as she knew, the applicant had merely borrowed some money from Mr D. on 2 June 2004.

16. On 31 August 2004 the applicant was indicted.

17. On 9 September 2004 the case was referred to the Kharkiv District Court for trial.

18. As the defendants had been transferred to Sevastopol on 20 September 2004 in order to attend the second set of proceedings (see paragraphs 40-62 below), no hearings took place until 11 July 2005.

19. On 11 July 2005 the hearing was adjourned until 8 September 2005, as the court had allowed Ms T.’s request for the appointment of a lawyer.

20. Two more adjournments followed, the second one being until 19 December 2005, owing to the absence of the victims and the witnesses, whose obligatory presence the police were ordered to guarantee.

21. There is no information in the case file on any developments in the first set of proceedings until July 2009.

22. On 24 July 2009 the judge in charge of the case withdrew, apparently owing to the fact that the applicant had initiated proceedings for damages against him in August 2008. The applicant’s claim was eventually dismissed on 7 December 2009.

23. On 9 March 2011 the case was reassigned to another judge.

24. On 26 May 2011 the applicant was taken to the Kharkiv SIZO.

25. On 3, 5, 9 and 12 August 2011 he was given access to the case file. He requested more time, but the court rejected this request as unjustified. It noted that the applicant had been unreasonably slow, studying only about twenty pages per day, and that one such extension had already been granted to him.

26. On 2 September 2011 the applicant sought the replacement of the lawyer appointed for him (it is not known when the applicant started to be represented by a lawyer in this set of proceedings). His request was allowed.

27. Also on 2 September 2011, the applicant submitted at the court hearing that he had been ill-treated following his arrest on 10 August 2004. The prosecutor participating in the hearing considered this to be a serious allegation which had to be duly investigated. He therefore invited the court to instruct the prosecution authorities to investigate the matter.

28. On the same date, the Kharkiv District Court instructed the Kharkiv Inter-District Prosecutor’s Office to investigate the applicant’s allegation of ill-treatment (for more details see paragraph 70 below).

29. On 9 November 2011 the Kharkiv District Court found the applicant guilty of theft and two counts of robbery and sentenced him to five years’ imprisonment to be calculated from 12 August 2004 as indicated in the arrest report. That sentence was absorbed by the sentence of life imprisonment imposed in the judgment of 13 April 2005 (see paragraph 59 below).

30. Relying on the ruling of Kharkiv Inter-District Prosecutor’s Office of 24 September 2011 (see paragraph 71 below), the trial court dismissed as unsubstantiated the applicant’s complaint of ill-treatment in police custody.

31. The applicant appealed. He complained that he had not had sufficient time for studying the case file, that the lawyer appointed by the court had not performed properly, that his father had not been allowed to represent him in the proceedings, and that he had been deprived of his right to submit a final plea as he had not been aware of the hearing date and had not been prepared. He also complained that he had been arrested on 10 August 2004, while the official date of his arrest was recorded as 12 August 2004. The applicant reiterated the allegation that he had been ill-treated by the Kharkiv police following his arrest.

32. The prosecutor also appealed. He argued that the applicant had not in fact been provided with a proper opportunity to submit a final plea, and that this warranted a retrial.

33. On 11, 13, 17 and 19 January 2012 the applicant was given access to the case file.

34. On 19 June 2012 the Kharkiv Regional Court of Appeal quashed the judgment of 9 November 2011 and remitted the case to the first-instance court for a fresh examination, having found that the applicant had indeed not been allowed to make a final plea.

35. On 7 August 2012, during a hearing in the Kharkiv District Court, the applicant requested that a further investigation be carried out in respect of his complaint of ill-treatment. He noted that he had been forced to confess to the theft and two counts of robbery, as well as the murder of a certain taxi driver. Later, however, the investigator had made him delete the incident regarding the taxi driver from the confession.

36. On the same date, the court asked the Kharkiv Inter-District Prosecutor’s Office to investigate the applicant’s allegation of ill-treatment once again. The investigation results are summarised in paragraphs 73-77 below.

37. On 16 August 2012 the hearing was adjourned owing to the absence of the victims and witnesses.

38. On 22 August 2012 there was a further adjournment until 27 September 2012.

39. The Court has not been informed by the parties of any further developments as regards this set of proceedings.

B. Second set of criminal proceedings against the applicant

40. During an unspecified period at the end of July and the beginning of August 2004, the applicant and Ms T. were in Sevastopol for a seaside holiday.

41. On the evening of 2 August 2004 there was a fire in a small country cottage (an illegal construction without electricity) in the village of Katcha, in the suburbs of Sevastopol. The dead body of the owner, Mr P., was discovered on the path leading to the building. His partner, Ms S., was discovered still alive next to his body. She died in the ambulance on the way to hospital (for more details see paragraph 59 below).

42. On 3 August 2004 the Sevastopol police launched a criminal investigation into the matter.

43. It is not known when and why the police started to suspect the applicant.

44. According to the applicant, on 15 August 2004 the Sevastopol police visited and questioned him in the Merefa ITT. He allegedly confessed to the infliction of fatal injuries on Mr P. and Ms S. and to setting their property on fire. There is no reference to the applicant’s statements of that date, or to the fact that he gave such statements, in any of the documents in the case file.

45. On 17 August 2004 Ms T. submitted, during her questioning by the Kharkiv police in respect of the theft and the robberies (see paragraph 15 above), that she and the applicant had been staying in the country house of Mr P. in Sevastopol. Mr P. had asked them to leave, which they did. However, having nowhere to go, the applicant and Ms T. had returned to Mr P.’s house in his absence. Late in the evening he and Ms S. had discovered their presence there, and Mr P. attacked the applicant with a stick. The applicant defended himself with an axe which happened to be at hand. According to Ms T., she had heard sounds of a fight, but did not see what happened next. When leaving the house, she had allegedly dropped the burning petroleum lamp by accident.

46. According to the information note on the criminal proceedings’ progress, prepared by the Sevastopol City Court of Appeal on 5 October 2012, the following events took place during the course of the investigation:

-on 18 August 2004 the applicant wrote a confession addressed to the Head of the Nakhimivskyy District Police Department of Sevastopol, and gave explanations regarding the murder;

-on 30 August 2004 the applicant was questioned as a witness in respect of the murder of Mr P. and Ms S.;

-on 31 August 2004 a criminal case was opened against the applicant on suspicion of the double murder and destruction of property.

No documents or further details are available in the case file as regards the above-mentioned investigative measures and events.

47. On 31 August 2004 the Sevastopol Prosecutor’s Office appointed a lawyer, Mr K., for the applicant.

48. On the same date, the charges of double murder and property destruction were officially brought against the applicant, his procedural rights were explained to him, and he was questioned as an accused in the presence of the appointed lawyer. The applicant confessed to having inflicted injuries on the victims and to setting their property on fire, but insisted that he had acted in self-defence and had had no intention of killing them.

49. On 15 September 2004 the Leninskyy District Court of Sevastopol (“the Leninskyy Court”) ordered the applicant’s detention for seventy-two hours with a view to ensuring his availability for the investigative measures associated with this criminal case.

50. On 19 October 2004 the Leninskyy Court, in a hearing which the applicant attended, remanded him in custody as a preventive measure pending trial. On 29 October 2004 the Sevastopol City Court of Appeal upheld that ruling.

51. On 26 October 2004 a new lawyer, Mr Du., was appointed for the applicant, replacing the one representing him earlier.

52. On the same date, the investigator conducted a reconstruction of the crime with the participation of the applicant and his lawyer, two attested witnesses and a forensic expert.

53. On 30 November 2004 the pre-trial investigation was declared complete and the applicant was provided with access to the case file.

54. On 17 January 2005 the Sevastopol City Court of Appeal, sitting as a court of first instance, commenced the trial. The applicant was present at the hearing.

55. On 21 January 2005 another hearing was conducted, at which the applicant lodged the following requests: to have the hearings audio-recorded; to have his father admitted as his representative in the proceedings; and to have the first and second sets of criminal proceedings against him joined into one case. The court allowed only the first request.

56. On 9 February 2005 the applicant complained during the hearing that he had been ill-treated by the Kharkiv police following his arrest on 10 August 2004.

57. On the same date, the court instructed the Sevastopol Prosecutor’s Office to investigate the matter.

58. On 25 February 2005 the Sevastopol Prosecutor’s Office passed this assignment to the Kharkiv Inter-District Prosecutor’s Office.

59. On 13 April 2005 the Sevastopol City Court of Appeal found the applicant guilty of double murder and property destruction and sentenced him to life imprisonment, which was deemed to have started running on 11 August 2004. The court relied, in particular, on the statements of a witness who had seen the applicant and Ms T. in the village of Katcha on the evening on 2 August 2004, those of a witness who had discovered the fire and the victims lying on the path near the burning building, and those of the fire brigade. The court also took into consideration the forensic examination report, according to which the saliva on several cigarette stubs found near the crime scene could have belonged to the applicant, and the forensic medical examinations of the victims. Both victims were found to have suffered multiple fatal blows of considerable strength. At the court hearing, the applicant sought the attendance of the ambulance doctor as a witness who could confirm that Ms S. was still alive when discovered, but he later withdrew that request. The applicant admitted having injured the victims with the back of an axe, but maintained that he had had no intention of killing them and that he had acted in self-defence. He also admitted having set the building on fire, but claimed that his intention was to draw attention to the victims so that somebody could help them. At the same time, the applicant complained that he had confessed due to fear of revenge by the police. The court noted that the applicant had been questioned by the prosecutor in the presence of his lawyer, which meant that there was no pressure on him. It also relied on the ruling of the Sevastopol City Prosecutor’s Office of 15 March 2005 (see paragraph 68 below).

60. According to the applicant, the appointed lawyer had ceased assisting him after pronouncement of the verdict. The case file, however, contains a copy of a cassation appeal prepared on the applicant’s behalf by the lawyer appointed to represent him. The cassation appeal referred to the alleged distortion of the facts of the case. Furthermore, the lawyer submitted that the investigation into the applicant’s complaint of ill-treatment had not been thorough enough.

61. The prosecutor also appealed against the judgment, seeking mitigation of the sentence for the applicant. He submitted that the murder in question had not been premeditated, but had taken place in the heat of a dispute. Furthermore, the applicant had voluntarily confessed, which should have had a mitigating effect on his sentence.

62. On 14 July 2005 the Supreme Court upheld the judgment of 13 April 2005. On 3 March 2006 its ruling was served on the applicant.

C. Alleged ill-treatment of the applicant and the investigation thereof

63. According to the applicant, following his arrest on 10 August 2004 he had been subjected to ill-treatment by the Kharkiv police. The applicant did not specify the time or circumstances of his arrest. According to him, he had been taken to the Merefa ITT, where several police officers had beaten him with rubber truncheons on his legs and arms, had twisted his arms behind his back while he was handcuffed and had hung him from an iron bar. They had also allegedly twisted his genitals. As submitted by the applicant, he had been in such pain that he fainted several times. He described his injuries as follows: bruises and sores on the forehead, back of the head and around the eyes, a split lip, and bruises on his back and the shoulders. His requests for medical examination and assistance had allegedly been ignored.

64. As further submitted by the applicant, his bruises and sores had healed by the time of his transfer from the Merefa ITT to the Kharkiv SIZO.

65. On 21 August 2004, upon his arrival at the Kharkiv SIZO, the applicant underwent a medical examination, which revealed no injuries. During that examination he complained of periodic headaches.

66. According to the material in the case file, the applicant first complained of ill-treatment during the court hearing on 9 February 2005 (see paragraph 56 above).

67. On 9 March 2005 the Kharkiv Inter-District Prosecutor’s Office delivered a ruling refusing to institute criminal proceedings in relation to the applicant’s allegation of ill-treatment, which it considered unfounded.

68. It appears from the record of the 24 March 2005 hearing of the Sevastopol City Court of Appeal (the first-instance court in the second set of criminal proceedings against the applicant) that on 15 March 2005 there was a further refusal to open a criminal case in respect of the applicant’s allegation of ill-treatment, which was issued by the Sevastopol City Prosecutor’s Office. As noted in the record, the ruling of 15 March 2005 was announced at this hearing and remained uncommented on by the applicant and his lawyer.

69. Following a request by the Kharkiv District Court of 2 September 2011, which was made in the context of the first set of criminal proceedings against the applicant (see paragraphs 26 and 27 above), the Kharkiv Inter-District Prosecutor’s Office carried out further investigations into the applicant’s allegation of ill-treatment and on 24 September 2011 issued a refusal to open a criminal case. It noted, in particular, that at the time of the events the applicant had not lodged any complaint with the prosecution authorities in that regard.

70. The applicant objected to the refusal and was informed that he was at liberty to challenge the ruling before the higher-level prosecution authorities and courts. The applicant did not do so.

71. On 7 August 2012 the Kharkiv District Court again asked the Kharkiv Inter-District Prosecutor’s Office to investigate the applicant’s allegation of ill-treatment (see also paragraphs 35 and 36 above).

72. On 28 August 2012 the prosecutor applied to the court for permission to question the applicant, who at that time was detained in the Kharkiv SIZO. This application was allowed.

73. On 3 September 2012 the applicant was questioned in respect of his allegation of ill-treatment, but refused to make any statements.

74. On 6 September 2012 the Kharkiv Inter-District Prosecutor’s Office again refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment.

75. On 20 September 2012 the Kharkiv Regional Prosecutor’s Office quashed the rulings of 24 September 2011 and 6 September 2012.

76. On 25 September 2012 the applicant was questioned. He submitted that, following his arrest on 10 August 2004, he had been placed in a basement cell in the Merefa ITT. On 11 August 2004 he had been taken from his cell to a room with a table and two chairs, where he had been beaten by three men: one in police uniform and two others in civilian clothes. The applicant gave a detailed description of their appearance, the way they had ill-treated him and the injuries he had sustained (see paragraph 63 above). He noted that the investigator had not ill-treated him, but had threatened that his beatings would be repeated if he did not cooperate.

77. Also on 25 September 2012 the Kharkiv Inter-District Prosecutor enquired of the Kharkiv SIZO administration whether the applicant had had any injuries when he had arrived at the SIZO in August 2004 and whether any medical assistance had been provided to him.

78. On 27 September 2012 the head of the SIZO medical unit replied that, upon the applicant’s arrival on 21 August 2004, he had been examined by a doctor. The applicant had not had any injuries, was healthy and had raised no complaints.

79. On 27 September 2012 the Kharkiv Inter-District Prosecutor’s Office once again refused to institute criminal proceedings against the Kharkiv police officials in respect of the applicant’s allegation of ill-treatment, having discerned no corpus delicti in their actions.

80. On the same date the applicant was notified of the aforementioned ruling. He was informed that he could challenge it before the higher-level prosecution authorities or courts but he did not do so.

D. Conditions of the applicant’s detention

1. In the Sevastopol ITT

81. The applicant submitted that he had been detained in the Sevastopol ITT from 18 October to 2 November 2004, from 10 November 2004 to 22 January 2005, from 2 to 10 February 2005, and from 18 March to 13 April 2005.

82. According to him, his cell there was severely overcrowded (about thirty inmates instead of the official maximum of eight), lacked natural light and was infested with insects. There was no hot water supply. Detainees were allowed to take showers only once in three weeks. Outdoor walks lasted for twenty minutes and did not take place every day. Furthermore, there was an insufficient number of sleeping places for all detainees, who therefore had to take turns to sleep. The toilet was not separated from the living area. The cell had no table.

83. On 19 June 2009, 10 May 2011 and 25 January 2012 various documents of the Sevastopol ITT for 2004 and 2005 were destroyed upon expiry of the respective time-limits for their storage.

84. Referring to the absence of documents, the Government found it impossible to provide any factual details as to the applicant’s detention in the Sevastopol ITT.

2. In the Kharkiv SIZO

85. The applicant was detained in the Kharkiv SIZO from 21 August to 25 September 2004, from 25 May 2005 to 14 February 2006, and from 26 May 2011 onwards (according to the most recent information as of November 2012).

(a) The applicant’s account

86. The cell was located in a semi-basement infested with rodents. It was extremely small, dark and damp, with a concrete floor, no ventilation and no radio. The toilet was not separated from the living area. There was no access to drinking water in the cell and no supply of essential hygiene requisites. The daily walks lasted for forty minutes instead of one hour.

(b) The Government’s account

87. The applicant’s cell, like any other cell for detainees serving a life sentence, was located on the first floor. All the cells were equipped with an artificial ventilation system. Rat extermination was carried out twice a year as might be required. In particular, rat extermination had been carried out in November 2011. As regards access to drinking water, in addition to the regular and centralised supply of water to washbasins, each cell was equipped with a 10-litre cooler for boiled water supplied from municipal utilities. All prisoners sentenced to life imprisonment were provided with soap. The daily walks lasted for one hour.

88. The Government relied, in particular, on the Report on the Sanitary and Epidemiological Inspection of the SIZO dated 2 February 2012. In addition to the aforementioned information, it was also noted in the report that the SIZO population comprised 3,230 detainees whereas its capacity was in fact 2,930 persons. The space per detainee was 2.1 square metres.

89. Another report relied on by the Government concerned the tap-water chemical analysis of 29 May 2012. It found the tap water in the SIZO to be fully suitable for drinking.

3. In the Dnipropetrovsk SIZO

90. The applicant was detained in the Dnipropetrovsk SIZO from 14 February to 1 March 2006, from 5 to 24 February 2007 and from 12 to 26 May 2011.

(a) The applicant’s account

91. The cell was located in a semi-basement and had a concrete floor. The cell was extremely small, dark and damp, without adequate ventilation or access to daylight. The toilet was not separated from the living area and was close to the table. Prisoners were handcuffed during their daily walks and cell searches. The nutrition was poor and did not vary.

(b) The Government’s account

92. The applicant was held in several different cells on the ground floor, namely:

-cell no. 3 k – 6.3 sq. m (2 beds);

-cell no. 03 – 6.3 sq. m (2 beds);

-cell no. 05 – 6.3 sq. m ( 2 beds);

-cell no. 02 – 6.3 sq. m (2 beds);

-cell no. 4 k – 6.4 sq. m (2 beds);

-cell no. 14 k – 6.0 sq. m (solitary confinement cell);

-cell no. 11 k – 6.1 sq. m (2 beds)

93. Cells for life prisoners had a concrete floor with a painted surface. If inmates did not have bedroom slippers, the SIZO administration provided them. There was artificial ventilation, and the level of humidity was within the standards. The cells had windows and were equipped with functioning electric lamps. Toilets in each cell were separated by a solid partition. Detainees received nutrition in accordance with legally stipulated norms. Handcuffs were used at all times when a life prisoner was taken out of his cell.

94. The Government based their account on the information note issued by the SIZO administration on 20 September 2012.

II. RELEVANT DOMESTIC LAW AND PRACTICE

95. The relevant extract from the Internal Regulations of the Penal Institutions of 25 December 2003 regarding the handcuffing of life prisoners, in particular, can be found in the judgment concerning the case of Kaverzin v. Ukraine (no. 23893/03, § 51, 15 May 2012).

III. RELEVANT INTERNATIONAL MATERIAL

96. Relevant Council of Europe and other material establishing standards for conditions of detention can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, §§ 101-103, 1 July 2010).

97. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”) visited the Dnipropetrovsk SIZO during the visit to Ukraine it carried out from 9 to 21 September 2009.

98. The relevant parts of the CPT report of 23 November 2011 (CPT/Inf (2011) 29) read as follows:

“109. When visited by the delegation, the SIZO in Dnipropetrovsk was holding 2,900 prisoners (including 220 women and 63 juveniles) for an official capacity of 3,456. The prisoner population comprised 26 life-sentenced prisoners. The SIZO served as a transit point for prisoners being transferred between penitentiary establishments and had a monthly turnover of some 5,000 inmates.

Prisoners were accommodated in 10 buildings of different age and configuration. Given that the visit to the establishment was of a targeted nature – focusing on newly arrived prisoners and life-sentenced prisoners – the delegation received an impression of material conditions only in some of the buildings.

110. In a detention block which had recently been renovated (units 6 and 7), cells measuring some 7 m² were holding usually 2, but occasionally 3, prisoners. There was enough natural light coming through the cells’ large windows, and access to artificial light and ventilation also appeared to be adequate. Each cell was equipped with a partitioned toilet and sink. This block, referred to as the “Euro-standard” block, was considered by the administration as a model.

In the four-storey building accommodating female prisoners (unit 10) and some of the male remand prisoners (unit 9), the delegation observed that the cells were less overcrowded than in the Kyiv SIZO (e.g. a cell measuring some 15 m² was holding 6 female prisoners; there were 13 prisoners in a cell of 33 m²). The cell equipment (double-bunk beds, lockers, a partitioned sanitary annexe) did not call for any particular comments. However, it was a matter of concern to the delegation that all cells’ windows were fitted with a solid metal shutter which considerably limited access to natural light. The CPT welcomes the immediate steps taken by the management of the SIZO to remove the metal shutters from all the cell windows in units 9 and 10, following a remark by the delegation at the end of the visit to the SIZO in Dnipropetrovsk.

The CPT recommends that, at the Dnipropetrovsk SIZO, efforts be made to decrease overcrowding, the objective being to offer a minimum of 4 m² of living space per prisoner in multi-occupancy cells.”

99. During the visit to Ukraine it carried out from 29 November to 6 December 2011, the CPT delegation also visited the Kharkiv SIZO.

100. The relevant parts of the CPT report of 14 November 2012 (CPT/Inf (2012) 30) read as follows:

“... conditions of detention were quite simply appalling in many of the ... detention units of the [Kharkiv SIZO]. Numerous cells were in a poor state of repair and had only very limited access to natural light. In addition, the CPT is concerned about the severe overcrowding observed in a number of detention units of [the establishment]. At the time of the visit, ... the Kharkiv SIZO [accommodated 3,415 prisoners (official capacity: 2,808 places).

The Committee acknowledges the efforts made by the Ukrainian authorities to reduce overcrowding in the [SIZO] visited. However, despite the fact that more than 1,000 prisoners had recently been transferred from the Kharkiv SIZO to other establishments, the situation remains very problematic ... (in particular in detention units for male adults).

By way of example, at the Kharkiv SIZO, the delegation found a cell measuring some 45 m² which was accommodating 44 male adult prisoners at the time of the visit (and reportedly had on occasion held even more). There were only 28 beds available which meant that prisoners were obliged to sleep in turns. They also had to store their personal belongings and wash and dry their laundry inside the cell. Some prisoners had been held in such conditions for several years.

The CPT must recommend once again that steps be taken at the ... Kharkiv [SIZO] and, where appropriate, in other penitentiary establishments in Ukraine to ensure that:

- every prisoner is provided with his own bed (and clean bedding);

- strenuous efforts are made to decrease the overcrowding and to distribute prisoners more evenly amongst the available accommodation, the objective being to offer a minimum of 4 m² of living space per prisoner;

- prisoners have adequate access to natural light and adequate ventilation in their cells.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT OF THE APPLICANT AND THE INVESTIGATION THEREOF

101. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police following his arrest on 10 August 2004 and that there had been no effective investigation into the matter. The provision relied on reads as follows:

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

102. The applicant maintained his account of the events as summarised in paragraph 63 above. He alleged that his ill-treatment at the hands of police had resulted in numerous bruises and sores. In his reply to the Government’s observations, he also submitted that the ill-treatment had triggered periodic headaches. The applicant further contended that there had been no meaningful efforts to establish the truth or to punish those responsible.

103. The Government disagreed. They argued that the applicant’s allegation was not supported by any evidence and that it had been duly investigated by the domestic authorities. Furthermore, they emphasised that, although the applicant had been legally represented, his complaint concerning his alleged beating by the police had not been raised until 9 February 2005, during his trial in the second set of criminal proceedings against him, that is to say about six months after the alleged ill-treatment.

104. In reply to this last-mentioned argument of the Government, the applicant submitted that, although a lawyer had been appointed for him on 31 August 2004, communication with him had taken place only during the investigative measures and with the investigator present. Accordingly, the applicant argued that he had not felt secure enough to raise the ill-treatment complaint until the court hearing on 9 February 2005.

105. The Court has stated on many occasions that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the conduct of the person concerned (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V).

106. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, 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 Labita, cited above, § 120).

107. In the present case the applicant made fairly detailed submissions as to the methods of ill-treatment employed by the police officers against him. He had allegedly suffered numerous blows with rubber truncheons to his legs and arms, had his arms twisted behind his back while he was handcuffed, and had been hung from an iron bar. His alleged ill-treatment also included twisting of his genitals (see paragraph 63 above).

108. The Court considers that if the alleged treatment of the applicant happened as described by him, it would constitute ill-treatment in violation of Article 3 of the Convention. The question is, however, whether there is sufficient information before the Court that such physical ill-treatment took place.

109. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita, cited above, § 121). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161 Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in 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).

110. However, some proof of the existence of injuries is indispensable (see, for example, Hristovi v. Bulgaria, no. 42697/05, §§ 73-78, 11 October 2011, and Igars v. Latvia (dec.), no. 11682/03, § 67, 5 February 2013).

111. Indeed, in the context of an ill-treatment allegation, the mere coherence of such an allegation cannot in itself prove the veracity of an applicant’s words, and a person with a vivid imagination, good memory and logical skills may invent an almost perfect story about something which has never happened (see Buntov v. Russia, no. 27026/10, § 153, 5 June 2012).

112. The Court notes that in the present case there is no immediate indication that the applicant sustained any injuries in police custody.

113. It cannot be ruled out that some bruises and sores could have healed during the period from 10 to 21 August 2004, while the applicant remained in the Merefa ITT, supposedly without any medical examination. As to the periodic headaches, of which he complained to the SIZO doctors on 21 August 2004, the Court notes that the applicant never suggested any connection between those headaches and his alleged ill-treatment. The first and only time when he made such a hint was in his reply to the Government’s observations in the proceedings before the Court (see paragraph 102 above).

114. The Court cannot therefore attribute the absence of any evidence in support of the applicant’s ill-treatment allegation to the authorities alone.

115. It further notes in this connection that the applicant never sought to be examined by a forensic medical expert. Moreover, he waited for six months before voicing his complaint at domestic level, although for more than five months of that period he was legally represented (see paragraphs 47, 56 and 66 above).

116. Thus, according to the applicant, he could not complain to his lawyer because communication between them had taken place only in the investigator’s presence (see paragraph 104 above). The Court notes, however, that the applicant never complained – either in the domestic proceedings or before the Court – about any restrictions on communication with the lawyer.

117. The Court accepts that an applicant might be discouraged from voicing his allegations by the very fact of being under the control of those whom he was accusing of ill-treatment (see Nadrosov v. Russia, no. 9297/02, § 33, 31 July 2008). However, in the present case the applicant did not remain under the control of the Kharkiv police or prosecution authorities for the entire time, since he was transferred on several occasions to Sevastopol, where the second case against him was being investigated. The Court notes that the applicant never complained about any ill-treatment or pressure from the Sevastopol investigator. It is therefore not clear what prevented the applicant from raising the ill-treatment allegation before the Sevastopol prosecution authorities whilst he was involved in the investigative activities in Sevastopol (on at least three occasions before 9 February 2005 – see paragraph 84 above).

118. Finally, even if the applicant felt secure only at court hearings, as submitted by him, it is not clear why he did not complain of his ill-treatment during the hearing in the Leninskyy Court on 19 October 2004 (see paragraph 50 above) or during the hearings of 17 and 21 January 2005 in the Sevastopol City Court of Appeal (see paragraphs 54 and 55 above). The Court notes that the applicant did submit a number of requests at the last-mentioned hearing of 21 January 2005. However, he waited for another nineteen days before lodging his ill-treatment complaint (see paragraphs 55 and 56 above).

119. In sum, the Court considers that there is no reasonable justification for the applicant having taken such a long time to make a complaint (see and compare with Khayrov v. Ukraine, no. 19157/06, § 55, 15 November 2012, and Gavula v. Ukraine, no. 52652/07, § 60, 16 May 2013).

120. The Court also notes that the applicant failed to produce any indirect evidence corroborating his allegations, such as eyewitness statements (contrast, for example, Muradova v. Azerbaijan, no. 22684/05, §§ 51-52 and 108, 2 April 2009) or any documents showing that he had entered the police premises in good health but left them having sustained injuries (see Selmouni, cited above, § 87, with further references).

121. Having regard to the above considerations, the Court finds that the applicant failed, both before the domestic authorities and the Court, to make out his claim that he was ill-treated as alleged. It follows that his complaints under Article 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION

122. The applicant further complained under Article 3 of the Convention about the conditions of his detention in the Sevastopol ITT, the Dnipropetrovsk SIZO and the Kharkiv SIZO.

A. Admissibility

123. The Government submitted that the applicant had not exhausted the domestic remedies as regards his complaints about the conditions of his detention in the Dnipropetrovsk and Kharkiv SIZOs. They noted that he could have raised this complaint before the public prosecutor in charge of the supervision of general lawfulness in penal institutions but had not done so. Any decision taken by the prosecutor could further be challenged before the domestic courts.

124. The applicant contested the effectiveness of the remedy cited, with reference to the Court’s case-law.

125. The Court notes that it has already dismissed similar objections by the Government on a number of occasions, as the problems arising from the conditions of detention in Ukrainian places of detention were of a structural nature and no effective remedy was available in this respect (see, for a recent case-law reference, Komarova v. Ukraine, no. 13371/06, § 50, 16 May 2013). The Court sees no reason to depart from that finding in the present case and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.

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

B. Merits

1. The parties’ submissions

127. The applicant maintained his description of the conditions of his detention as summarised in paragraphs 84-85, 89 and 94 above.

128. The Government contested his allegations regarding the conditions of detention in the Kharkiv and Dnipropetrovsk SIZOs as inaccurate, relying instead on their own account (see paragraphs 90-92 and 95-97 above). As to his detention in the Sevastopol ITT, the Government submitted that they were not in a position to comment on the merits of that complaint, given that they had no pertinent documents at their disposal (see paragraphs 86 and 87 above).

2. The Court’s assessment

129. The Court reiterates that, under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of execution of the 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).

(a) Conditions of the applicant’s detention in the Sevastopol ITT

130. In the absence of any evidence proving otherwise, the Court considers it established that the applicant was detained in the Sevastopol ITT, for a total of ninety-six days during the three periods in 2004 and 2005 as indicated by him (see paragraphs 84, 86 and 87 above).

131. The Court notes that in the case of Yakovenko v. Ukraine it has already examined a complaint about the conditions of detention in the Sevastopol ITT pertaining to a similar time frame to the complaint in the present case (no. 15825/06, § 89, 25 October 2007). In the cited case the Court found a violation of Article 3 of the Convention on account of, in particular, overcrowding, sleep deprivation and lack of natural light and air.

132. The Court observes that similar grievances have been raised in the present case. It considers them to be sufficiently substantiated and plausible.

133. Accordingly, the Court concludes that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s detention in the Sevastopol ITT.

(b) Conditions of the applicant’s detention in the Kharkiv SIZO

134. The Court notes that problem of severe overcrowding in the SIZO was established by the CPT, which visited the Kharkiv SIZO in November and December 2011, that is to say while the applicant was detained there (see paragraphs 97 and 98 above).

135. The Court further observes that in February 2012, while the applicant remained in the SIZO, the domestic authorities also acknowledged this problem (see paragraph 91 above).

136. Furthermore, the findings of the CPT report are concordant with the applicant’s allegations as regards the generally unsatisfactory conditions of detention, the poor state of repair and the limited access to natural light (see paragraph 98 above).

137. The combination of the above-mentioned factors, which the applicant endured for a significant period of time (for at least two years and four months if his detention in the Kharkiv SIZO is calculated as lasting until November 2012, or longer if he remained there thereafter – see paragraph 88 above), is sufficient to enable the Court to conclude that the conditions of his detention in the Kharkiv SIZO amounted to inhuman and degrading treatment contrary to the requirements of Article 3 of the Convention. There has accordingly been a violation of that Article on this account, too.

(c) Conditions of the applicant’s detention in the Dnipropetrovsk SIZO

138. The Court notes that the applicant was detained in the Dnipropetrovsk SIZO on three occasions in 2006, 2007 and 2011, for a total of forty-eight days.

139. It is not disputed between the parties that the applicant spent most of his time detained in a cell shared with another inmate, which measured some six square metres. Each inmate therefore had some three square metres of personal space available to him, which is less than the minimum standard recommended by the CPT for Ukraine (see Davydov and Others, cited above, § 107). In the light of its case-law (see, for example, Trepashkin v. Russia, no. 36898/03, § 92, 19 July 2007; Melnik, cited above, § 103; and Visloguzov v. Ukraine, no. 32362/02, § 46, 20 May 2010), the Court finds that the lack of personal space afforded to the applicant in detention in and of itself raises an issue under Article 3 of the Convention, regard being had, particularly, to the considerable restrictions on freedom of movement and outside exercise.

140. The Court further notes that the Government’s assertions that the ventilation, lighting and sanitary arrangements in the SIZO were adequate (see paragraph 96 above) are not supported by sufficient evidence and are couched in general terms. They do not contain responses to the applicant’s concrete and consistent allegations to the contrary.

141. Furthermore, the applicant’s allegations are supported by the findings of the CPT, whose delegation visited the Dnipropetrovsk SIZO in September 2009 (see paragraphs 97 and 98 above).

142. Lastly, the Court notes that it has examined and found a violation of Article 3 in respect of similar allegations regarding the conditions of detention in that SIZO in the case of Iglin v. Ukraine, in which the applicant was detained there at about the same time as the applicant in the present case (no. 39908/05, §§ 51-56, 12 January 2012).

143. Consequently, the Court concludes that the conditions of the applicant’s detention in the Dnipropetrovsk SIZO were inhuman and degrading. There has therefore been a violation of Article 3 of the Convention in this aspect as well.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE FIRST SET OF CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

144. The applicant also complained that the length of the first set of criminal proceedings against him had been excessive. He relied on Article 6 § 1 of the Convention reading as follows in the relevant part:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

145. 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

146. The applicant submitted that there had been no justification for the length of the first set of criminal proceedings against him. He contrasted it with the second set, which concerned a double murder and destruction of property and which had lasted for less than two years. The applicant observed that the proceedings in the first case regarding an incident of theft and two incidents of robbery – where the authorities claimed to have sufficient direct evidence against him, including eyewitness statements from the victim – had lasted for about four times as long.

147. The applicant next pointed out that the first set of proceedings had been at a complete standstill for about six years, from May 2005 to March 2011. He submitted that this delay had remained unexplained by the authorities. His participation in the second set of proceedings could not explain it, as the verdict in the second set had been pronounced on 13 April 2005 and had become final on 14 July 2005.

148. The Government contended that the length of the first set of proceedings was reasonable.

149. They noted that the case was complex, as it had concerned three different incidents of theft and robbery, and had involved two accused. Furthermore, the applicant’s participation in the concurrent second set of proceedings had also caused certain delays.

150. The Government further submitted that some delays had been caused by the parties’ behaviour: namely, the non-attendance of the victims and a witness, and the applicant’s prolonged studying of the case file.

151. 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 following criteria: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, among many other references, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).

152. The Court notes that the first set of criminal proceedings against the applicant in the present case lasted for more than nine years and has not yet been completed.

153. Although the case involved three incidents and two co-accused, it does not appear to be particularly complex. There appear to have been no significant delays in the proceedings caused by the applicant’s behaviour. At the same time, the Court is mindful of the unexplained standstill in the proceedings from December 2005 to July 2009 (see paragraph 21 above), which can only be attributed to the authorities.

154. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Yeloyev v. Ukraine, no. 17283/02, 6 November 2008, and Nakonechnyy v. Ukraine, no. 17262/07, 26 January 2012).

155. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

156. There has accordingly been a breach of Article 6 § 1 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

157. The applicant also raised a number of other complaints under Articles 5, 6, 8, 10, 13 and 14 of the Convention.

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

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

159. 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

160. The applicant claimed EUR 30,000 in respect of non-pecuniary damage.

161. The Government contested this claim.

162. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, the Court awards him EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

163. The applicant also claimed EUR 800 for the costs and expenses incurred before the Court.

164. The Government contested this claim as it was not supported by documents.

165. 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 fact that the applicant had been granted legal aid and the fact that he did not provide any evidence in support of his claim, the Court makes no award.

C. Default interest

166. 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 under Article 3 (as regards the conditions of the applicant’s detention) and Article 6 (as regards the length of the first set of proceedings) admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s detention in the Sevastopol ITT;

3. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s detention in the Kharkiv SIZO;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s detention in the Dnipropetrovsk SIZO;

5. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the first set of criminal proceedings against the applicant;

6. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement[1];

(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;

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

Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

[1]. Rectified on 4 March 2014: the text “to be converted into the currency of the respondent State at the rate applicable at the date of settlement” was added.

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