CASE OF KOMAROV v. UKRAINE

FIFTH SECTION

CASE OF KOMAROV v. UKRAINE

(Application no. 4772/06)

JUDGMENT

STRASBOURG

19 January 2017

This judgment is final but it may be subject to editorial revision.

In the case of Komarov v. Ukraine,

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

André Potocki, President,
Ganna Yudkivska,
Síofra O’Leary, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 13 December 2016,

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

PROCEDURE

1. The case originated in an application (no. 4772/06) 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 Vladimir Georgiyevich Komarov (“the applicant”), on 16 January 2006.

2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna of the Ministry of Justice.

3. The applicant alleged that he had not received adequate medical care in detention, that the conditions of his pre-trial detention had been inhuman, that his defence rights had been violated, and that his son had been unlawfully detained between 13 and 14 September 2003.

4. On 26 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991.

A. Criminal proceedings against the applicant

6. On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish.

7. Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs.

8. On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group.

9. On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present.

10. On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant.

11. On 16 September 2003 the applicant’s pre-trial detention was ordered by a court.

12. On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer.

13. On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime.

14. On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation.

15. On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence.

16. On 18 November 2003 the applicant was again questioned in the presence of his lawyer.

17. On 15 December 2003 all the criminal proceedings against the applicant were joined.

18. On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes.

19. On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present.

20. On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty.

21. On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative.

22. On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer.

23. On 9 March 2004 the criminal case against the applicant and his co‑accused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants.

24. In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant.

25. On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drug‑related offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered.

26. The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present.

27. On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it.

28. On 22 June 2006 the Court of Appeal upheld the trial court’s judgment.

29. On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments.

30. On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case.

31. On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.

B. Events related to the applicant’s son

32. The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts.

33. On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother.

34. On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003.

35. On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son.

36. On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General.

37. In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office.

38. On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment.

39. On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant.

40. On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained.

41. On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either.

42. On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken.

43. On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13 to 14 September 2003 at the applicant’s own request.

44. On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004.

45. On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations.

46. On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers.

47. On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings.

48. During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection.

49. On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009.

II. Conditions of the applicant’s detention in Zaporizhzhya Pre-Trial Detention Centre no. 10 (“the SIZO”).

50. The applicant was detained in the SIZO from 17 September 2003 to 14 July 2006 and from 18 March 2008 to 24 February 2009.

A. The applicant’s account

51. According to the applicant, the conditions of his detention were grossly inadequate. The cells were overcrowded. In particular, a cell measuring 3.8 square metres with one bed could be occupied by eight to ten persons. As a result, detainees had to take turns to sleep. A bucket, which served as a toilet, was located in plain sight one metre away from the eating area. It had no cover and was emptied only once a day. The ventilation was very poor. The cell smelled of excrement, was filled with cigarette smoke and was damp, in particular as the detainees washed and dried their laundry there. It was also infested with cockroaches, lice and bedbugs. The shower, which had lukewarm water, was available only once every ten days. Access to natural daylight was severely limited because of a dense grill on the window. The electric lighting was so dim that it was impossible to read or write without damage to the eyes. The food was meagre and insufficient to meet the detainees’ nutritional needs. Outside walks were available only on a scarce and irregular basis. Detainees sick with contagious diseases, such as tuberculosis, venereal diseases, pediculosis and scabies, were held in the same cells as healthy detainees and not provided with medical assistance. As a result, the applicant also contracted scabies and other skin diseases.

B. The Government’s account

52. According to the information provided by the Government, the applicant had been held in the following cells while in the SIZO:

cell no. 18 – 21.87 sq. m ( intended for eight detainees );

cell no. 65 – 10.99 sq. m (intended for four detainees);

cell no. 70 – 20.4 sq. m (intended for four detainees);

cell no. 36 – 12.05 sq. m (intended for four detainees).

53. The conditions in those cells had been adequate and the space per detainee had not been less than 2.5 sq. m, as provided for by the relevant domestic legislation. All the cells had been equipped with a toilet and a ventilation system. Running water and mains drainage had been available. They noted, referring to the relevant documents, that there had never been a cell measuring 3.8 sq. m in the SIZO.

54. The Government further stated, referring to the relevant domestic regulations, that detainees had been provided with appropriate food and linen and had had weekly access to shower facilities and one-hour daily walks. They contested the statement that the applicant had shared a cell with smokers and those suffering from infectious diseases, pointing to the applicant’s failure to provide the respective evidence and called attention to the fact that there had been a special isolation wing in the SIZO for detainees suffering from such diseases.

55. On 10 March 2006, following the applicant’s complaints concerning the improper conditions of his detention in the SIZO, the prosecutor’s office carried out an inspection visit there and found the applicant’s complaint to be partially substantiated. It found, inter alia, that some cells – not the ones in which the applicant had been detained – and utility rooms had been in poor sanitary condition and had been infested by cockroaches; and that the cell space for persons infected with tuberculosis had not been in compliance with the relevant domestic standards. The SIZO governor was instructed to remedy the situation. No evidence in support of the applicant’s allegations of improper nutrition and poor lighting had been found.

III. Medical care provided to the applicant in pre‑trial detention

A. The applicant’s medical treatment in the SIZO

56. On 15 May 2001, following retirement from the police service, the applicant underwent a medical examination and was diagnosed with osteochondrosis, chronic gastritis in remission, chronic hepatitis, chronic pancreatitis, trichromatic anomalies, uric acid diathesis and adiposity of the first degree. According to the applicant, he was advised to undergo inpatient treatment twice a year and to appear before a special panel to decide on whether he had to be assigned disability status in view of his illnesses. He submitted that the relevant medical examination had been scheduled for the end of September 2003 but had not been carried out as he had been arrested.

57. Upon his arrival at the SIZO the applicant underwent a medical examination during which he raised no complaints about his state of health. His medical file contained a certificate, issued on 14 September 2003 by an emergency hospital, stating that he was suffering from ischaemic heart disease, cardiosclerosis, angiosclerosis of the coronary vessels, symptomatic hypertension, and chronic bronchitis. In view of the available information on the applicant’s illnesses, he was put on the list for regular medical check-ups and was prescribed medical treatment.

58. On 20 and 23 September, 1 October, 17 November and 24 December 2003, 11 November 2004 and 4 July and 1 December 2005 the applicant complained to the SIZO medical unit of headaches and, on some occasions, of heart pain and dizziness. He was diagnosed with first- or second-degree hypertension and received antihypertensive medication. His blood pressure was subsequently regularly monitored and, when necessary, antihypertensive treatment was provided.

59. On 20 November 2003, 24 and 30 May and 4 July 2004 and 5 July 2005 the applicant complained to the SIZO medical unit of skin eruptions and itching. He was diagnosed with dermatitis and was provided with the necessary medical treatment.

60. On 9 October 2003 the applicant was examined by a panel composed of the head of the SIZO medical unit, a general practitioner and a physiotherapist. He was diagnosed with hypertension and prescribed the relevant treatment.

61. In October 2003 the applicant was registered for follow-up care (диспансерний облік) in respect of his hypertension. He underwent urine and blood tests which revealed no pathology.

62. On 1 March 2004 the applicant underwent a medical check-up. He was diagnosed with second-degree hypertension and nephropathy and was prescribed the relevant medical treatment. It was also recommended that the applicant consult an ophthalmologist and a neuropathologist.

63. On 15 March 2004 the applicant was examined by a neuropathologist from a regional psychiatric hospital located in prison no. 20 and by an ophthalmologist from a civil hospital. The medication prescribed following the examination was administered to the applicant by the SIZO.

64. On 30 March 2003, 27 August 2004, 24 February, 23 August and 14 December 2005 the applicant underwent X-ray examinations of his lungs and heart, which revealed no problems.

65. On 23 April 2004, following a request from the applicant’s lawyer, the applicant was examined by the chief neurosurgeon of the Zaporizhzhya Regional Hospital. The prescribed medication was provided to the applicant by the SIZO medical unit.

66. On 14 and 23 June 2004 the applicant was examined by a neuropathologist. He was diagnosed with second-degree hypertension and nephropathy and was prescribed vascular and antihypertensive medication.

67. On 29 October 2004 the applicant underwent a medical check-up. He complained of recurrent headaches and dizziness and was diagnosed with second-degree hypertension and nephropathy. Antihypertensive medications were prescribed.

68. On 7 November 2005 the applicant was examined by a dermatologist. He was diagnosed with neurogenic dermatitis and prescribed the relevant medication. He was also advised to consult a psychiatrist.

69. On 28 November 2005 the applicant underwent a medical check-up. He complained of headaches and dizziness. His second-degree hypertension was confirmed following the examination and the relevant treatment was prescribed.

70. On 2 January 2006 the applicant was examined by a dermatologist and was diagnosed with dermatitis. He was advised to continue the treatment prescribed previously.

71. On 24 January 2006 the applicant was examined by a panel of SIZO physicians comprised of a psychiatrist, a dermatologist and a general practitioner. He was diagnosed with hypertension, chronic gastritis, chronic pancreatitis in remission, chronic hepatitis in remission, heartburn and a hypertensive neurocirculatory dystonia. The relevant medical treatment was prescribed.

72. On 10 February 2006 the applicant underwent a medical check-up and was diagnosed with arterial hypertension and hypertensive encephalopathy. The relevant treatment was prescribed. The applicant was further advised to consult a neuropathologist and an ophthalmologist.

73. On 15 February 2006 the applicant was examined by a medical panel comprised of SIZO and civil-institution physicians (an ophthalmologist, a general practitioner and a neuropathologist). He was diagnosed with symptomatic arterial hypertension and an uncomplicated cerebral crisis. It was concluded that the applicant’s state of health did not necessitate inpatient medical treatment.

74. On 1 November 2006, when serving his prison term in prison no. 45, the applicant was examined by a group of disability experts and recognised as falling into the third (mildest) category of disability for a one-year period. Outpatient treatment for the illnesses he had been suffering from was recommended.

B. Complaints related to the applicant’s health in detention

75. From 15 December 2003 the applicant’s wife lodged a number of complaints with the SBU, prosecutors, courts and other State authorities alleging, inter alia, that the applicant had been unlawfully arrested and detained; that his health was in a critical condition; and that no relevant medical treatment could have been provided to him within the SIZO. She therefore requested that the preventive measure in respect of the applicant be changed and that he be immediately released from detention.

76. On 22 December 2003 and 9 January 2004, after a number of enquiries, the SBU informed the applicant’s wife that the applicant’s state of health was compatible with detention and that the SIZO had all the necessary facilities to provide the applicant with qualified medical assistance.

77. On 3 February 2004 the applicant’s wife complained about the above conclusions before the Prosecutor General.

78. On 2 June 2004, in reply to the applicant’s lawyer’s query about the medical assistance provided to the applicant, the SIZO informed the lawyer that his state of health was compatible with detention and that he was under the regular supervision of the SIZO medical staff. They further submitted that it was at the court’s discretion to allow medical examination of the applicant by medical specialists from civil institutions.

79. On 15 August 2004 the applicant’s wife asked the prosecutor’s office to provide truthful information about the applicant’s state of health and stated that adequate medical assistance could not be provided to the applicant in the SIZO in view of the absence of the relevant medical specialists at the detention facility. In the light of this, she asked that the applicant undergo a medical examination in a civil medical institution.

80. On 24 November 2004 the prosecutor, having conducted an investigation into the matter and having studied the applicant’s medical file, replied to the applicant’s wife that her complaint appeared to be unfounded and that adequate medical assistance was being provided to the applicant in the SIZO.

81. On 4 July 2005 the applicant’s lawyer lodged an application with the District Court requesting that a medical examination of the applicant by neurologists from civil hospitals be ordered.

82. On 7 September 2005, following enquiries made by the court upon the lawyer’s request, the SIZO provided the court with a certificate, according to which the applicant was under the permanent supervision of the SIZO medical unit and did not necessitate medical examination by specialists other than those practising in the SIZO. It was further noted that his state of health was compatible with detention as none of his diagnoses were on the list of the illnesses, provided for by law, for which early release was possible. The applicant challenged this conclusion before the Office of the Prosecutor General alleging, inter alia, that the certificate had been forged and issued unlawfully by an unauthorised and unqualified medical officer. To verify the applicant’s complaint, the Zaporizhzhya regional prosecutor’s office conducted enquiries and ordered, inter alia, that the applicant be examined by different medical specialists.

83. On 24 January 2006, in compliance with the prosecutor’s order, the applicant was medically examined by a panel of SIZO physicians (see paragraph 71 above). It was established in the course of that examination that the applicant had been under the close supervision of the SIZO medical unit and, when the need had arisen, of outside doctors; that twice a year, owing to his diseases, he had undergone a medical checkup; that all his complaints had been adequately addressed; and that his state of health had been compatible with detention. It was further established in the course of the prosecutor’s enquiries that the medical certificate of 7 September 2005 had been issued by an authorised person and had contained objective information and had correctly referred to the applicant’s state of health.

84. On 2 and 23 February 2006, on the basis of the above conclusions, the prosecutor’s office informed the applicant that no violations on the part of SIZO medical staff had been established.

85. On 13 February 2006 the applicant again complained to the Prosecutor General regarding the allegedly forged certificate of 7 September 2005.

86. On 3 March 2006, following further enquiries into the applicant’s complaint and another medical examination of the applicant (see paragraph 73 above), the prosecutor’s office informed him that his allegations appeared to be groundless.

IV. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine

87. The relevant provisions of the Constitution provide:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, advocates shall act to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other State bodies.”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, or members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant has the right to a defence ...”

B. Civil Code of 2003 (in force as from 1 January 2004)

88. Article 1174 of the Civil Code provides that the damage sustained as a result of unlawful decisions, actions or inactivity by a State official shall be indemnified by the State irrespective of the guilt of that official.

89. Article 1176 of the Civil Code provides for the right to compensation for damage sustained as a result of unlawful decisions, actions or inactivity on the part of authorities responsible for pre-investigation inquiries and pre-trial investigations, prosecutors’ offices and courts. Paragraph 5 of the Article provides that any damage other than that listed in the preceding paragraphs of the Article shall be indemnified under the general procedure.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT

90. The applicant complained that the conditions of his pre-trial detention in the SIZO, including the physical, sanitary and health-care arrangements, had been incompatible with 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. Alleged poor conditions of the applicant’s detention in the SIZO

1. Admissibility

91. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints concerning some aspects of the material conditions of his detention. In particular, he could have raised with the prosecutor’s office his complaints concerning the toilet, the lack of fresh air, the water supply and the humidity in the cells.

92. When commenting on the merits of the applicant’s complaint, the Government further claimed that the applicant’s submissions had been vague and general and not supported by any evidence. They noted, inter alia, that the applicant had neither specified the cells in which he had been detained, nor the periods of his detention there. He had failed to mention which cells he had described in his submission and had provided no names of cellmates who could have confirmed his submissions.

93. The applicant did not comment on the Government’s argument and maintained his complaint.

94. The Court notes in respect of the Government’s non-exhaustion argument that it has already dismissed similar objections by the Government on a number of occasions, finding the remedy referred to by them ineffective on the grounds that it had not been shown that recourse to such proceedings could have brought an improvement in the applicant’s detention conditions because of the structural nature of the problems in the domestic penal system (see, for example, Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010, and Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014). 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.

95. At the same time, it agrees with the Government that some of the applicant’s complaints are not specific and are not supported by evidence.

96. Nonetheless, on the basis of the case file, the Court considers that the applicant’s chief grievance – the overcrowding in the SIZO combined with the lack of daily walks – can still be regarded as having a sufficient basis in the circumstances at hand. The Court therefore dismisses the Government’s objection as regards this part of the applicant’s complaint.

97. To sum up, the Court finds that the applicant’s complaint concerning overcrowding in the SIZO is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. The Court rejects the remainder of the applicant’s complaints concerning the poor material conditions of his detention as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

2. Merits

98. The applicant alleged that he had been held in overcrowded cells, with no outdoor exercise provided.

99. The Government contested this view. They submitted, referring to their factual submissions, that the living space in the cells in which the applicant had been detained had been in compliance with domestic standards. They further stated that the applicant had been entitled by law to a one-hour daily walk.

100. The Court reiterates that Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his or her human dignity and that the manner and method of the execution of the measure do not subject him or her 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).

101. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention and may disclose a violation, both alone or taken together with other shortcomings. When the personal space available to a detainee falls below 3 sq. m of floor space in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39‑40, 7 April 2005, and Ananyev and others v. Russia, nos. 42525/07 and 60800/08, §§ 145-147 and 149, 10 January 2012, and Muršić v. Croatia [GC], no. 7334/13, §§ 136-139, 20 October 2016). This presumption will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor; (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, §§ 130, 133 and 134).

102. The Court notes that in the present case the available evidence indicates that during his stay in the SIZO the applicant lacked personal space. In particular, as reported by the Government, the cells in which the applicant had been detained allowed from 2.55 to 3.01 sq. m of floor space per inmate. The Government did not actually state how many inmates had occupied these cells at the relevant time.

103. Furthermore, given that the cells also contained sanitary facilities, the personal space available to detainees was further reduced.

104. Even assuming that the applicant had a one-hour daily walk, as suggested by the Government, the Court further observes that for most of the day the applicant and his cellmates had no freedom of movement and were confined to their cells.

105. Given the aforementioned and in the light of its case-law (see, among other authorities, Muršić, cited above, §§ 136 - 141; Gorbatenko v. Ukraine, no. 25209/06, § 139, 28 November 2013; and Iglin v. Ukraine, no. 39908/05, §§ 51-52, 12 January 2012), the Court finds that the conditions of the applicant’s detention in the SIZO, in particular the lack of personal space afforded to the applicant, combined with the lack of access to outdoor activities for almost four years of his detention, amounted to degrading treatment. Accordingly, there has been a violation of Article 3 of the Convention in this respect.

B. Alleged inadequacy of the medical assistance provided to the applicant in the SIZO

1. Admissibility

106. The Government did not comment on the issue of the admissibility of this part of the application.

107. 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.

2. Merits

(a) The parties’ submissions

108. The applicant complained that his state of health had sharply deteriorated in the SIZO. In particular, his chronic diseases had become active, his eyesight had worsened, and he had suffered regular hypertensive crises. He submitted that his state of health had necessitated inpatient treatment in a civil hospital as no specialists “in his disease[s]” had been available at the SIZO and adequate assistance could not therefore have been provided to him in that facility. He stated in this connection that the SIZO medics had made incorrect conclusions about his state of health. As a result, he had been later assigned disability status.

109. The Government referred to the applicant’s medical file and stated that from the very beginning of his detention the applicant had been under the close supervision of the medical unit of the SIZO in view of the illnesses he had contracted before his detention there. He had undergone regular medical examinations, including by civil doctors, and his numerous health complaints had been rapidly and adequately addressed. They noted that the applicant had failed to produce evidence that he had been refused treatment on a particular occasion or that the treatment had been inadequate or had led to the worsening of his state of health.

110. Lastly, the Government submitted that the applicant’s complaints at domestic level concerning his poor state of health had not been linked to the inadequacy of his treatment but rather to the need to release him from detention.

111. The applicant maintained his complaint without addressing the Government’s arguments.

(b) The Court’s assessment

112. The Court reiterates that in accordance with Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‑VI).

113. However, the Court has held that Article 3 of the Convention cannot be interpreted as ensuring that every detainee should receive medical care at the same level as “in the best civil clinics” (see Mirilashivili v. Russia (dec.), no. 6293/04, 10 July 2007). It has further held that it is “prepared to accept that, in principle, the resources of medical facilities within the [prison] system are limited compared to those of civil clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007). On the whole, the Court takes a flexible approach in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

114. The Court further notes that the “adequacy” of medical care remains a difficult element to determine. The mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical care provided was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept of the detainee’s state of health and his treatment while in detention (see, for example, Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006-XII), that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006), and that – where necessitated by the nature of a medical condition – supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006).

115. Turning to the circumstances of the present case, the Court notes that before being placed in detention the applicant was diagnosed with a number of illnesses which warranted medical supervision and care (see paragraphs 56 and 57 above).

116. The Court further notes that the applicant’s complaint concerning a sharp deterioration of his health in detention was not specific. Accordingly, and given the long history of his illnesses and the lack of information on his part as to how and how often the diseases manifested themselves before his detention and how they were treated, the Court finds it difficult to establish whether and to what extent the applicant’s health deteriorated in the SIZO and to what extent that deterioration, if any, had resulted from the inadequacy of the medical assistance in detention, rather than being the natural course of his medical conditions (see, for example, Rudenko v. Ukraine, no. 5797/05, § 94, 25 November 2010).

117. At the same time, it is apparent from the applicant’s detailed medical record submitted by the Government that the SIZO administration expressly recognised the applicant’s need for specialised treatment, in particular with regard to his hypertension (see paragraphs 57 and 61 above) and the applicant’s health was continuously supervised while in detention. On numerous occasions the applicant was seen by various specialists, including a neurologist, a neurosurgeon and an ophthalmologist from civil institutions, and he underwent regular medical check-ups and tests in view of his illnesses. None of the applicant’s health problems of which he had complained to the SIZO medical unit appears to have remained untreated. The applicant did not contest these submissions and did not dispute or criticise the Government’s statement that he had been provided with medical treatment in accordance with the established diagnoses. Furthermore, there is no evidence and it was not persuasively argued that the SIZO doctors had acted in bad faith or that the treatment provided had been ineffective. The Court notes the speculative nature of the applicant’s reference to his disability status as, according to the applicant’s own submission (see paragraph 56 above), he had been advised to appear before a special medical panel to decide on his possible disability as far back as in 2001.

118. The Court further notes that the applicant’s complaints were examined by the prosecutor’s office and nothing in the case file suggests that the conclusions reached were unjustified.

119. Lastly, the Court cannot but observe that the applicant’s complaint was primarily directed against the very fact of his being placed in detention and seemed to stem from his frustration over the SIZO conclusions that his state of health had been compatible with detention.

120. Overall, given the foregoing and having regard to the material in the case file and the parties’ submissions, the Court concludes that the authorities did everything that could have reasonably been expected of them in the circumstances to safeguard the applicant’s health and well-being during his detention (see Komarova v. Ukraine, no. 13371/06, §§ 62-70, 16 May 2013).

121. There has accordingly been no violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF THE APPLICANT

122. The applicant complained that his rights of defence had not been respected in the criminal proceedings against him, as he had not been legally represented during the initial stage of the investigation. He also stated that his access to a lawyer while in pre-trial detention had been severely restricted because of the grossly inadequate facilities at the SIZO.

123. These complaints fall to be examined under Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention. Those provisions, in so far as relevant, read:

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights: ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

A. Lack of access to a lawyer at the initial stage of the investigation

1. Admissibility

124. The Government have not submitted any comments concerning the admissibility of this part of the application.

125. 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.

2. Merits

(a) The parties’ submissions

126. The applicant complained that his lawyer had not been informed of his arrest and that from 13 to 19 September 2003 he had been prevented from meeting with his lawyer. He further stated that the lawyer had not been present during all the investigative steps.

127. The Government pointed out that before the applicant had made his statement on 13 September 2003 he had been informed of his right to remain silent. They further submitted that the applicant had formally been questioned as a suspect for the first time on 14 September 2003. He had refused to give a statement in the absence of a lawyer. The next interview had been conducted on 19 September 2003 in the presence of the lawyer hired by the applicant’s wife. They observed that no investigative steps had been taken between 14 and 19 September and that all major investigative steps thereafter had been taken in his lawyer’s presence. The lawyer had been absent only when the applicant was being informed of the results of some forensic examinations which were delayed because of his refusals at the beginning of the investigation to be informed of the experts’ conclusions before the investigation had been completed. He studied the relevant documents together with his lawyer after the completion of the investigation.

128. Referring to the Court’s case-law (Salduz v. Turkey [GC], no. 3639/02, 27 November 2008; Brennan v. the United Kingdom, no. 39846/98, 16 October 2001; and Trymbach v. Ukraine, no. 44385/02, 12 January 2012), the Government further submitted that the fact that the applicant had remained unrepresented until 19 September 2003 had not influenced the fairness of the proceedings against him as he had always pleaded not guilty and none of his statements, including those given in the absence of lawyer, had been used by the trial courts to secure his conviction.

129. They lastly observed in this connection that neither in his submissions before the Court nor at domestic level had the applicant ever specified in what way the absence of a lawyer before 19 September 2003 had affected his defence rights and the fairness of his conviction. They therefore claimed there had been no violation of Article 6 of the Convention.

130. In his response to the Government’s comments, the applicant maintained his complaint concerning the lack of legal assistance between 13 and 19 September 2003 without addressing the Government’s arguments.

(b) The Court’s assessment

131. The Court observes at the outset that the applicant’s wife hired a lawyer to represent the applicant’s interests on 15 September 2003 and on 19 September 2003 the applicant requested that the lawyer be admitted to the proceeding. His request was granted on the same date (see paragraphs 10, 12 and 13 above). There is no evidence in the case file in support of the applicant’s statement that he had a lawyer at the time of his arrest and that that lawyer had unsuccessfully tried to gain access to the applicant. To the extent that the applicant’s submissions might be understood as a complaint that he had not been provided with a lawyer at the early stage of the proceedings, the Court makes the following observations.

132. Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz, cited above, § 55).

133. The above test in Salduz, for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage, the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 257, 13 September 2016).

134. As to the first stage of the test, the criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular when a suspect is first questioned, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. It is of relevance, when assessing whether compelling reasons have been demonstrated, whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (ibid., § 258).

135. Where compelling reasons are established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (ibid., § 264).

136. Where compelling reasons are not established, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (ibid., § 265).

137. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:

(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.

(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.

(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.

(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.

(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.

(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.

(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.

(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.

(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.

(j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).

138. Turning to the facts of the present case, the Court notes that the applicant was arrested at the scene of a crime and therefore the investigator had every reason to suspect him of drug transportation. However, nothing suggests that the applicant had been offered legal assistance before questions were put to him and he made his statement on 13 September 2003 following his arrest. On the facts, the Court does not find any compelling reason for the failure to respect the applicant’s right to a lawyer on the first occasion on which he was questioned. The Court finds irrelevant the Government’s argument that it was the applicant’s own choice to explain his version of events and that he had been informed of his right not to give any explanations. It notes in this connection that the relevant documents suggest that no right to legal assistance had been explained to the applicant on that day and there is no evidence that the applicant had waived, in any way, his right to a lawyer. It therefore concludes that the applicant’s defence rights were unjustifiably restricted at the initial stage of the investigation.

139. Accordingly, the Court must apply a very strict scrutiny in assessing whether the absence of a lawyer undermined the fairness of the proceedings (see Ibrahim and Others, cited above, § 265).

140. In making the overall fairness assessment the Court is guided by the Ibrahim criteria (see paragraph 138 above), to the extent it is appropriate in the circumstances of the present case.

141. Turning to those criteria, the Court notes that (i) the applicant was not particularly vulnerable; (ii) as to the quality of evidence, there is no evidence before the Court that would indicate that any compulsion was involved; (iii) the evidence in the case was assessed by professional judges.

142. Furthermore, at no stage of the proceedings did the applicant make any self-incriminating statements. It appears that the applicant consistently maintained that he was not guilty and he did not change this position from the first time he was questioned up to the submissions made before this Court.

143. Moreover, apart from the initial explanations of 13 September 2003, no statements were given by the applicant without his lawyer present.

144. As to the use to which that evidence was put, the Court notes that the applicant’s statement of 13 September 2003 was not listed among the pieces of evidence upon which the domestic courts had based the applicant’s conviction; indeed the courts did not mention or refer to it in any way (see, by contrast, Titarenko v. Ukraine, no. 31720/02, 20 September 2012). He was found guilty on the basis of a number of pieces of evidence submitted in the case, including the statements made by his co‑defendants, and not through any illicit means or methods.

145. The Court further agrees with the Government that the applicant’s complaint about the lack of legal assistance is very general. Neither in his appeals before the domestic courts nor in his submissions before this Court did he point to any concrete disadvantages caused by the absence of a lawyer until 19 September 2003. Likewise, he failed to specify which investigative actions had been conducted after 19 September 2003 without his lawyer present and how, in his view, these had affected the fairness of the proceedings. He also did not take the opportunity to elaborate on this aspect of the application in the observations that he submitted in response to those of the Government.

146. Consequently, in the circumstances of the present case, the Court finds no evidence that the absence of legal assistance at the initial stage of the proceedings irremediably affected the general fairness of the proceedings (see, mutatis mutandis, Trymbach v. Ukraine, cited above, §§ 62-65). It therefore concludes that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.

B. Lack of access to a lawyer while in the SIZO

147. The applicant initially stated before the Court that because of the high demand and the limited number of meeting rooms in the SIZO he had often been prevented from meeting with his lawyer.

148. The Government submitted that the applicant had not raised his complaints in his appeals before the domestic courts and therefore had not exhausted the available domestic remedies.

149. They further submitted that the complaint was, in any event, unsubstantiated and provided detailed information, supported by documents, on the number of meetings the applicant had had with his lawyer while in pre-trial detention.

150. In his comments in reply to the Government’s observations, the applicant did not comment on the above-mentioned arguments and did not refer to his initial complaint at all.

151. Thus, without prejudice to other possible grounds for inadmissibility, the Court agrees with the Government that the applicant failed to exhaust the domestic remedies available to him because he did not raise his complaints in his appeals against his conviction. This part of the application must thus be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE APPLICANT’S SON

152. The applicant complained of the unlawful detention of his son at the SBU’s premises between 13 and 14 September 2003 which, allegedly, gave rise to violations of his son’s rights under Articles 1, 2, 3, 5, 6, 7, 8, 13, 17 of the Convention and Article 3 of Protocol No.7 thereto.

153. The Court, being the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I), finds that these complaints, as presented by the applicant, fall within the scope of Articles 5 § 1 and 8 of the Convention, which, in so far as relevant, read as follows:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfillment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence ...”

154. The Government maintained that the applicant had not exhausted domestic remedies in respect of both aspects of his complaint. They noted, referring to the separate ruling of the District Court of 25 October 2005, that the domestic authorities had acknowledged violations of the applicant’s son’s rights, as complained of by the applicant. Such acknowledgment had provided the applicant with an opportunity to claim compensation for damage under the general procedure provided for in Article 1174 of the Civil Code of Ukraine, which he had failed to take advantage of. In their opinion, it was for the applicant to demonstrate that the remedy would not have been effective in his case.

155. The applicant did not comment on the Government’s arguments.

156. The Court finds, assuming that the applicant was entitled to bring the application in his own name for an alleged violation of the rights of his son (see e.g. Tonchev v. Bulgaria, no. 18527/02, §§ 30-33, 19 November 2009; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000‑VIII), that the relevant complaints should be declared inadmissible for the reasons below.

A. The applicant’s complaint concerning the detention of his son from 13 to 14 September 2003 (Article 5 of the Convention)

157. Even assuming that Article 5 of the Convention is applicable in the circumstances of the present case and that the authorities did acknowledge, in substance, violations of the applicant’s son’s rights, the Court notes that it has already considered similar arguments of the Government in comparable circumstances in the case of Lopatin and Medvedskiy v. Ukraine (nos. 2278/03 and 6222/03, §§ 76 and 77, 20 May 2010) and Savin v. Ukraine (no. 34725/08, § 77, 16 February 2012) and found that the remedy under the Civil Code could not be deemed effective. In particular, in the above-mentioned Lopatin and Medvedskiy case the Court found that the Government had failed to demonstrate that the Civil Code of 2003 could provide a basis for a claim for damages in connection with unlawful detention since in that case the relevant events had occurred prior to the entry into force of the Civil Code, that is to say prior to 1 January 2004.

158. Turning to the circumstances of the present case, the Court notes that the events complained of by the applicant occurred in September 2003. As in the Lopatin and Medvedskiy case, in the present case the Government did not argue and did not demonstrate that the provisions of the Civil Code could apply retroactively to the events that had taken place prior to the entry into force of the Code.

159. The Court points out that according to its established case-law it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. The Court thus considers that in this case the Government have not satisfied their burden of proof and therefore dismisses their objection.

160. The Court, however, finds, in these circumstances and given the fact that no other effective remedies appear to be available to the applicant, that the applicant’s complaint was lodged out of time (application to the Court lodged in 2006) and therefore must be dismissed in accordance with Article 35 §§ 1 and 4 of the Convention.

B. The applicant’s complaint regarding the suffering caused to his son by his detention between 13 and 14 September 2003 (Article 8 of the Convention)

161. The Court reiterates that the Government’s argument on the applicant’s failure to apply for compensation under the Civil Code was raised with respect to the complaints under both Articles 5 and 8.

162. Accordingly, the Court’s findings in paragraphs 157-160 above are equally pertinent to the applicant’s complaint under Article 8. Without prejudice to other possible reasons for inadmissibility, this complaint has to be declared inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention as being lodged out of time.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

163. Lastly, the applicant complained that he had been unlawfully arrested, detained and convicted and that no compensation had been provided to him in this respect; that a public hearing had been held in his case contrary to his request; that the length of the proceedings in his case had been excessive; that the conditions of his transportation between the detention facilities had been poor; that unlawful searches had been conducted of his relatives’ property; that there had been negative publicity around the applicant’s name before his conviction; that his car and property had been unlawfully searched and seized; and that adequate medical assistance had not been provided to him in prison.

164. Having regard to all the material in its possession, the Court finds that the evidence discloses no 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 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

165. 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

166. The applicant claimed 130,000 euros (EUR) in total in respect of all damage suffered by him, his son and his wife.

167. The Government contested this claim.

168. The Court observes that it has found a violation of Article 3 of the Convention in respect of the poor conditions of the applicant’s detention. Ruling on an equitable basis, the Court awards the applicant EUR 3,000 in compensation for the non-pecuniary damage suffered on account of the violation found.

B. Costs and expenses

169. The applicant also claimed EUR 20,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court, including postal services.

170. The Government argued that the applicant had failed to provide evidence that the expenses claimed had been incurred.

171. 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, given that the applicant provided no documents to substantiate the amount claimed, the Court rejects the claim for costs and expenses.

C. Default interest

172. 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 admissible the complaints concerning the poor conditions of the applicant’s detention in the SIZO and the health care provided therein, as well as the complaint about the lack of access to a lawyer at the early stage of criminal proceedings, 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 conditions of the applicant’s detention in the SIZO;

3. Holds that that there has been no violation of Article 3 of the Convention on account of the medical treatment provided to the applicant in the SIZO;

4. Holds that there has been no violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention on account of the lack of legal assistance at the initial stages of investigation;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement in respect of non-pecuniary damage;

(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;

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

Done in English, and notified in writing on 19 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident

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