CASE OF KRASNYUK v. UKRAINE

FIFTH SECTION

CASE OF KRASNYUK v. UKRAINE

(Application no. 66217/10)

JUDGMENT
 

STRASBOURG

17 December 2019

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

In the case of Krasnyuk v. Ukraine,

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

Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 26 November 2019,

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

PROCEDURE

1.  The case originated in an application (no. 66217/10) 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 Aleksandr Ivanovich Krasnyuk (“the applicant”), on 30 October 2010.

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

3.  The applicant complained, in particular: under Article 3 of the Convention about the physical conditions of detention and the alleged lack of medical care in the Kharkiv pre-trial detention centre (“the Kharkiv SIZO”), the conditions of his transportation on hearing days, and his alleged ill-treatment by Oleksiyivska Prison officials; under Article 5 § 3 about the length of his pre-trial detention; under Article 6 § 1 about the length of the criminal proceedings against him; and under Article 8 of the Convention about the refusal to allow him meetings with his common-law wife while he had been in detention.

4.  On 29 May 2012 the Court gave notice of the application to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1962 and lives in Lyman, Kharkiv Region.Criminal proceedings against the applicant

6.  In the evening on 26 November 2006 the applicant had a dispute with his former common-law wife, G. (with whom he had been co-habiting until October 2006) and her mother T., having met them in the street. He stabbed T. in the stomach with a knife that he had with him. Her injury was assessed as grievous and life-threatening. The applicant also pulled the knife on G. and cut her jacket, without injuring her. Furthermore, he inflicted an insignificant knife wound on G.’s 14-year-old niece, who was also present. An ambulance was called. G. also called the neighbourhood police officer, S. The applicant followed G., T. and G.’s niece to G.’s home, where he took her mobile telephone from her and left before the arrival of the ambulance and the police.

7.  On the following day police officer S. arrested the applicant on suspicion of disorderly conduct (namely, being drunk and swearing in public). The officer questioned the applicant, however, in respect of the incident involving G. and her relatives. No further details are known concerning that questioning.

8.  On 28 November 2006 the Izyum Town Court (“the Izyum Court”) found the applicant guilty of an administrative (minor) offence of disorderly conduct and sentenced him to ten days’ administrative detention.

9.  The case file before the Court does not contain any documents in respect of the above-mentioned administrative-offence proceedings against the applicant, apart from officer S.’s testimony, as summarised in the judgment of the Izyum Court of 27 July 2011, which had been given in the course of the criminal proceedings against the applicant (see paragraph 28 below).

10.  On 4 December 2006 criminal proceedings were instituted against the applicant on suspicion of inflicting grievous bodily injuries.

11.  On 7 December 2006 he was arrested as a suspect in those proceedings.

12.  On the following day the Izyum Court remanded the applicant in custody as a preventive measure pending trial. It referred to the seriousness of the charges against him and held that, if at liberty, he might abscond, interfere with the investigation, or resume his alleged criminal activities.

13.  On 27 December 2006 the applicant was officially charged with hooliganism, inflicting grievous bodily injuries, and robbery.

14.  On the same day, however, the charge of inflicting grievous bodily injuries was reclassified to that of attempted murder.

15.  On an unspecified date a lawyer was appointed to defend the applicant, at the latter’s request.

16.  On 30 December 2006 the pre-trial investigation was completed and the applicant was provided with access to the case file.

17.  On 8 February 2007 the case was referred to the Izyum Court for trial.

18.  On 7 March 2007 that court held a preparatory hearing. In so far as its ruling concerned the issue of the preventive measure, it stated – without further reasoning – that the applicant was to be kept in pre-trial detention.

19.  In April 2007 the applicant requested the trial court to admit Ms Kr., to whom he referred as his “wife”, to the proceedings as his lay representative in the capacity of a close relative. The latter, however, refused to act as his representative, informing the court that they had divorced. The applicant’s request was therefore rejected.

20.  On 23 January 2008 the Izyum Court found the applicant guilty of hooliganism, inflicting grievous bodily injuries (rather than attempted murder) and robbery, and sentenced him to eight years’ imprisonment.

21.  On 19 March 2009 the Kharkiv Regional Court of Appeal (“the Regional Court”) quashed that judgment and remitted the case for additional pre-trial investigation. It held, in particular, that the bill of indictment had not complied with all the legal requirements. Furthermore, there were some unexplained discrepancies in the sequence of the events in question and the applicant’s motives, as presented by the accusation and in the judgment. The appellate court held that the preventive measure that had been earlier applied in respect of the applicant (that of pre-trial detention) remain unchanged, without providing further reasoning in that regard.

22.  On 25 June 2009 the additional pre-trial investigation was completed.

23.  On 31 July 2009 the Izyum Court held a preparatory hearing. It ruled that the preventive measure in respect of the applicant was to be the same as before (that of pre-trial detention).

24.  On 17 November 2009 it found the applicant guilty of making murder threats, the premeditated infliction of grievous and light bodily injuries, and the forcible assertion of his rights (самоправство) (in respect of his withholding G.’s phone). The applicant was sentenced to five years and six months’ imprisonment.

25.  On 9 September 2010 the Regional Court quashed that judgment and remitted the case for fresh examination to the first-instance court. It held that some conclusions by the Izyum Court concerning the facts of the case and their legal classification did not correspond to those determined by the pre-trial investigation and that no explanation had been given in that respect. The first-instance court was criticised, among other things, for finding the applicant guilty of forcibly asserting his rights in respect of his withholding G.’s mobile phone, whereas in fact he had had no rights in that respect.

26.  In so far as the above-mentioned ruling of the Regional Court concerned the preventive measure in respect of the applicant, its wording was identical to that of its earlier ruling of 19 March 2009 (see paragraph 21 above).

27.  On 5 October 2010 the applicant requested the trial court to admit Ms Ko., referred to as his “common-law wife”, to the proceedings as his lay representative. On the following day Ms Ko. joined the applicant in that request and expressed her willingness to represent him. That request was refused on the grounds that, under the Code of Criminal Procedure, only close relatives could be admitted as lay representatives in criminal proceedings, whereas there was no evidence proving that Ms Ko. complied with that condition.

28.  On 27 July 2011 the Izyum Court delivered a new judgment by which it found the applicant guilty of hooliganism, robbery, and inflicting grievous bodily injuries, and sentenced him to eight years’ imprisonment. At the court hearing, the applicant did not deny the incident, but claimed that he had injured G.’s mother and niece accidentally. He also admitted to having taken G.’s mobile telephone, but argued that he had intended to call an ambulance and had forgotten to give the telephone back to G.

29.  On 17 April 2012 the Regional Court upheld that judgment.

30.  On 29 May 2012 the applicant lodged an appeal on points of law.

31.  On 20 June 2012 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”) rejected that appeal on points of law as not complying with certain procedural requirements and set a time-limit for the applicant to rectify the indicated shortcomings. The case file before the Court does not contain a copy of that ruling.

32.  It appears that the applicant lodged his appeal on points of law again, but only after the expiry of the relevant time-limit. As a result, on 12 November 2012 the Higher Specialised Court rejected it as belated.

33.  On 14 February 2013 the applicant lodged an application with the Izyum Court for an extension of the time-limit for him to lodge an appeal on points of law. He argued that he had only belatedly received a copy of the appellate court’s above-mentioned ruling.

34.  On 25 April 2013 the Izyum Court rejected the applicant’s request. It noted that he had had three months in which to lodge an appeal on points of law after the appellate court had given its ruling on 17 April 2012. There was documentary evidence proving that the applicant had received a copy of the ruling in question on 19 June 2012. However, he had asked for the time‑limit extension only eight months later.

35.  On 5 December 2014 the applicant was released, having served his sentence.Conditions of detention in the Kharkiv SIZO

36.  The applicant was detained in the Kharkiv SIZO from 12 December 2006 until 18 August 2011 and from 8 September 2011 until 28 April 2012.Physical conditions of detention

(a)   The applicant’s account

37.  Overcrowding was a major issue. Sometimes a cell with thirty-eight sleeping places accommodated up to fifty inmates.

38.  Sanitary conditions were unacceptable. There was only one washstand and one toilet for all the inmates in the cell.

39.  There was no access to natural light, while electric light was insufficient. Ventilation was not sufficient either. The temperatures in the cell were too high in summer and too low in winter.

40.  The applicant was not allowed to receive parcels with home-made food or hygiene items, and food and hygiene items sold in the SIZO were exorbitantly priced.

(b)   The Government’s account

41.  The applicant was detained in the following cells:

-          from 12 December 2006 until 15 January 2007 – cell no. 285 (8.3 sq. m, with a window of 0.6 sq. m affording natural ventilation, and one 100‑watt electric bulb);

-          from 15 January until 14 February 2007 – cell no. 247 (7.7 sq. m, with a window of 0.6 sq. m affording natural ventilation, and one 100-watt electric bulb);

-          from 14 February 2007 until 8 February 2008 – cell no. 141 (48.8 sq. m, with two windows measuring in total 1.4 sq. m, mechanical ventilation and three 100-watt electric bulbs);

-          from 8 February 2008 until 6 August 2009 – cell no. 129 (47.6 sq. m, with two windows measuring in total 2.05 sq. m, mechanical ventilation, three 100-watt electric bulbs);

-          from 6 August until 24 September 2009 – cell no. 117 (45.7 sq. m, with two windows measuring in total 2.05 sq. m, mechanical ventilation, and three 100-watt electric bulbs);

-          from 24 September until 21 November 2009 – cell no. 141;

-          from 21 November 2009 until 18 October 2010 – cell no. 117;

-          from 18 October 2010 until 25 February 2011 – cell no. 116 (60.6 sq. m, with two windows measuring in total 1.8 sq. m, mechanical ventilation, and three 100-watt electric bulbs);

-          from 25 February until 1 March 2011 – cell no. 58 (17.5 sq. m, with a window of 3.75 sq. m affording natural ventilation, and three 100-watt electric bulbs);

-          from 1 until 4 March 2011 – cell no. 201 (3.8 sq. m with a window of 0.6 sq. m affording natural ventilation, and one 100-watt electric bulb);

-          from 4 March until 18 August 2011 – cell no. 116;

-          from 8 September 2011 until 4 March 2012 – cell no. 129;

-          from 4 until 5 March 2012 – cell no. 51 (13.9 sq. m, with a window of 3.75 sq. m affording natural ventilation, and three 100-watt electric bulbs);

-          from 5 until 10 March 2012 – cell no. 208 (3.6 sq. m, with a window of 0.6 sq. m affording natural ventilation, and one 100-watt electric bulb);

-          from 10 until 21 March 2012 – cell no. 275 (58.3 sq. m, with seven windows measuring in total 12.7 sq. m affording natural ventilation, and three 100-watt electric bulbs);

-          from 21 until 29 March 2012 – cell no. 117;

-          from 29 March until 25 April 2012 – cell no. 695 (17.8 sq. m, with two windows measuring in total 0.57 sq. m affording natural ventilation, and one 100-watt electric bulb);

-          from 25 until 28 April 2012 – cell no. 696 (16.3 sq. m, with two windows measuring in total 0.57 sq. m affording natural ventilation, and one 100-watt electric bulb).

42.  Each cell was equipped with a table, a bench, and a washstand.

43.  Furthermore, there was a toilet in each cell, separated by a brick wall from the living area.

44.  The conditions in all the cells complied with the applicable sanitary requirements. There was “wet cleaning” on a daily basis, using a disinfectant solution.

45.  During the cold period of the year there was central heating, which did not allow the temperatures inside to drop below 18oС.Medical care

(a)   The applicant’s account

(i)  Tuberculosis

46.  The applicant started suffering from pulmonary tuberculosis (TB) in March 2012 as a result of his detention for six days in a punishment cell (карцер), where he “had been subjected to physical pressure”.

47.  On 11 June 2012 the applicant’s representative wrote to the Court that the poor conditions of the applicant’s detention in the Kharkiv SIZO were the reason for his TB.

48.  On 4 June 2013 the applicant’s lawyer additionally wrote, in her reply on the applicant’s behalf to the Government’s observations, that he had been “subjected to electric shocks” and that cold water had been “poured on him” during his six-day detention in that punishment cell, after which he had been diagnosed with TB.

49.  There were no further submissions from the applicant or his representatives regarding his TB and its treatment.

(ii)  Other health-related concerns

50.  The applicant suffered from influenza on a number of occasions, for which the medical unit did not provide any free-of-charge medications.

51.  The applicant’s eyesight seriously deteriorated in detention: prior to his arrest on 27 November 2006 he had needed glasses of 1.25-1.50 dioptres, while on 16 June 2011 an ophthalmologist who examined the applicant in detention noted that he needed glasses of above 4 dioptres.

(b)   The Government’s account

(i)  Tuberculosis

52.  As confirmed by his medical file, the applicant was diagnosed for the first time with pulmonary tuberculosis in 1986, during his detention in Raykiv Prison no. 73. The applicant then underwent medical treatment for tuberculosis for about nine months in Snigurivska Prison no. 5.

53.  Immediately after the applicant’s arrival at the Kharkiv SIZO on 12 December 2006 he underwent a medical examination and was found to be essentially healthy.

54.  On 19 December 2006 the applicant underwent chest X-rays as part of the standard medical supervision.

55.  On the same day he was examined by a TB specialist and placed under outpatient observation on account of a diagnosis, arising from the X‑ray results, of “residual post-tuberculosis changes in the lungs (category 5.1)”. In connection with that diagnosis, the applicant was provided with anti-relapse treatment consisting of two anti-TB drugs: Isoniazid (0.3) and Rifampicin (0.6). It was recommended that the applicant be X-rayed every six months.

56.  Subsequently, the applicant was X-rayed and examined by a TB specialist on a regular basis – namely, on 11 June, 12 June and 4 December 2007 and 13 February and 15 February 2008. No signs of TB were documented.

57.  On 15 February 2008 the TB specialist who had examined the applicant concluded that there was no further need for his continued outpatient observation.

58.  On 27 March 2012, following a routine X-raying of the applicant, he was diagnosed with pneumonia. A TB specialist examined him on the same day and prescribed him with the following anti-pneumonia medications: Doxycycline (one capsule three times per day for fourteen days) and Ceftriaxone (one intermuscular injection per day for fourteen days).

59.  On 25 April 2012 the applicant’s medical documents were transferred to a panel of doctors from Kharkiv TB Dispensary no. 1, who gave him a final diagnosis of “relapse of pulmonary tuberculosis”.

60.  The applicant underwent anti-TB treatment in a tuberculosis isolation ward at the Kharkiv SIZO for five days.

61.  On 29 April 2012 he was transferred for further examination and treatment to the specialised TB hospital attached to Zhovtnevska Prison no. 17 (“Zhovtnevska Prison”; of medium-security level).

62.  As at the date of the Government’s observations, 26 September 2012, the applicant had been undergoing treatment in Zhovtnevska Prison. More specifically, the following anti-TB medications were administered to him: Isoniazid (0.3), Rifampicin (0.6), Pyrazinamide (2.0) and Ethambutol (1.2). According to the Government, there was no shortage of the required medications and the applicant was receiving them in full.

63.  The applicant’s health was improving and his state was considered satisfactory.

(ii)  Other health-related concerns

64.  No other health-related concerns of the applicant were brought to the attention of the authorities.Conditions of the applicant’s transportation to and from court hearings

65.  On one occasion, in a letter to the Court of 27 January 2012, the applicant briefly mentioned that he was being transported to court hearings during the winter period not by train (which was the usual practice), but in unheated vans, despite his not having sufficient warm clothing, and that such trips lasted for about three hours. That was the only submission from the applicant on that issue. None of the parties commented on it after the notice of that complaint was given to the Government.Alleged ill-treatment in Oleksiyivska Prison no. 25

66.  According to the applicant, upon his arrival at Oleksiyivska Prison no. 25 (“the Oleksiyivska prison”) at 10.30 a.m. on 18 August 2011 he was made to take off all his clothes in order to undergo a personal search; he was kept completely naked until 7 p.m. – including during his questioning by the prison staff.

67.  All the documents that he had with him, including copies from his case file, were allegedly withheld by the guards.

68.  The applicant further alleged that, when he had objected to the guards’ actions, he was taken to the prison’s duty unit (чергова частина), where he was forced to stand facing a wall at a distance from it of one metre, with his feet and hands spread apart and his hands on the wall. He alleged that he was forced to remain in that position for three days without sleep or water.

69.  On 21 August 2011 he was taken to the prison’s transfer unit (етапна частина).

70.  On the following day the applicant was allegedly taken back to the duty unit where he had been subjected, for the following two days, to the same ill-treatment as he had received prior to 21 August 2011. According to the applicant, he was told that that was his punishment for violating prison rules, arguing with the guards, and disobeying their orders.

71.  On 26 August 2011 the applicant was allegedly placed in the prison’s disciplinary unit (дисциплінарний ізолятор) for three days as punishment for having asked the guards to return his documents. During his detention there he was allegedly forced to follow military-type orders, such to stand upright, to run with his arms behind his head, or to learn poems or songs after his spectacles were taken away. When he disobeyed, he was allegedly beaten up.Visits from Ms Ko. while the applicant was in detention

72.  Ms Ko., who also acted as the applicant’s representative before the Court at the early stages of the proceedings, wrote to the Court that she had learned of the arrest of the applicant, to whom she referred as her common‑law husband, three and a half years later, by pure chance, from third persons.

73.  On 5 July 2010 the applicant requested the Izyum Court for a short-term visit by Ms Ko., without further explanations.

74.  On 22 July 2010 the Izyum Court wrote to the applicant that it was for Ms Ko. to request such a visit.

75.  There is no information regarding whether Ms Ko. did in fact ask to be allowed to visit the applicant.

76.  On 14 September 2011 the applicant again requested the Izyum Court to be allowed to meet with Ms Ko, this time specifying that she was his common-law wife.

77.  On 15 September 2011 the Izyum Court replied to the applicant that his request had been rejected for the following reasons: firstly, there was no evidence proving that Ms Ko. was his “close relative”, within the meaning of Article 345 of the Code of Criminal Procedure (see paragraph 83 below); secondly, Ms Ko. herself had not asked for such a visit.

78.  On 7 July 2012 Ms Ko. applied to the administration of Zhovtnevska Prison, in which the applicant was detained at the time, to be allowed to make a short-term visit to him.

79.  On the same day the applicant had a short-term meeting with Ms Ko.

80.  According to the Government, thereafter neither the applicant nor Ms Ko. asked for further meetings. The applicant’s comment on that was limited to an observation that since June 2012 he and Ms Ko. had been trying to get married, but that this had not been possible because of the loss of his passport by the authorities.RELEVANT DOMESTIC LAWCode of Criminal Procedure 1960 (as in force at the material time; repealed with effect from 19 November 2012)

81.  The relevant provisions concerning pre-trial detention can be found in Krivolapov v. Ukraine (no. 5406/07, §§ 60 and 61, 2 October 2018).

82.  Article 162 provided, at the relevant time, that visits by relatives or other people to a detainee could be allowed by the official or authority in charge of the case in question.

83.  Under Article 345, the presiding judge or the president of the relevant court was obliged to grant close relatives of a convict, upon their request, permission to visit him or her, prior to the entry into force of a judgment in his or her criminal case.Code on Enforcement of Sentences 2003 (as worded at the material time)

84.  Under Article 110, prisoners were entitled to short-term visits lasting no longer than four hours and to long-term visits lasting no longer than three days. Short visits could be granted to prisoners to meet with relatives or other persons and were to be held in the presence of a prison officer. Long-term visits could be granted to prisoners in order for them to meet with close relatives only (that is to say a spouse, parents, children, foster parents, foster children, siblings, grandparents, or grandchildren). Long-term visits could also be granted to a prisoner to meet with a person who had lived with him or her as a spouse without being actually married, provided that they shared parentage of minor children.

85.  Article 139 provided that prisoners held in medium-security-level prisons were entitled to one short-term visit per month and one long-term visit every three months.Pre-Trial Detention Act 1993 (as in force at the relevant time)

86.  Section 12 read as follows in the relevant part:

“Visits by relatives or other people can be allowed to individuals remanded in custody by the administration of a pre-trial detention facility only with the written permission of the investigator, the investigating authorities or the court examining the case – as a rule, once per a month. The duration of [such a] a visit shall be from one to four hours.”

THE LAWSCOPE OF THE CASE

87.  In his reply to the Government’s observations on the case the applicant raised a new complaint under Article 3 of the Convention that in January 2013, during his detention in Zhovtnevska Prison, he had slipped on ice and had sustained a fracture of the thighbone, and that the prison administration had been responsible for that.

88.  The applicant also complained for the first time in his reply to the Government’s observations that he had not been able to get married to Ms Ko. because the authorities had allegedly lost his passport and had not taken any measures to restore it to him.

89.  In the Court’s view, these complaints do not constitute an elaboration of the applicant’s original complaints (on which the parties have had the opportunity to comment). It considers, therefore, that it is not appropriate to take up this matter within the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

90.  The applicant complained that the physical conditions of his detention in the Kharkiv SIZO, as well as the conditions of his transportation to and from court hearings, had been unacceptable. He also complained that he had not been provided with medical care in the Kharkiv SIZO. Lastly, the applicant complained that he had been ill-treated by the Oleksiyivska Prison guards. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”The parties’ submissions

91.  The Government submitted that the applicant had not exhausted the domestic remedies in respect of all the above complaints (except for the one concerning his transportation on hearings days, on which the Government did not comment). According to the Government, he could have brought those complaints before the prosecution authorities or directly before administrative courts. In the alternative, the Government argued that the applicant had failed to duly substantiate his complaints.

92.  The applicant disagreed. He submitted that he had complained to the Kharkiv Regional Prosecutor’s Office on several occasions about the conditions of his detention.The Court’s assessmentPhysical conditions of detention

93.  The Court reiterates that it adopts conclusions after evaluating all the evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012).

94.  The Court is mindful of the objective difficulties experienced by the applicants in collecting evidence to substantiate their claims about the conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (ibid. § 122). In certain cases applicants are able to provide at least some evidence in support of their complaints. The Court has considered as evidence, for example, written statements by fellow inmates or, if possible, photographs provided by applicants in support of their allegations (see, for example, Golubenko v. Ukraine (dec.), no. 36327/06, § 52, 5 November 2013, and cases cited therein).

95.  Once a credible and reasonably detailed description of allegedly degrading conditions of detention, constituting a prima facie case of ill‑treatment, has been made, the burden of proof is shifted to the respondent Government, who alone have access to information capable of corroborating or refuting those allegations (see, among other authorities, Muršić v. Croatia [GC], no. 7334/13, § 128, 20 October 2016).

96.  Turning to the present case, the Court notes that, although the applicant alleged that overcrowding had been a major problem, he did not provide any factual details in support of that allegation. His only related submission was that sometimes a cell designed for a maximum of thirty‑eight persons had in fact accommodated up to fifty inmates (see paragraph 37 above). The applicant did not specify which cell he was referring to, for how long he had been detained there, whether he had been afforded an individual sleeping place, whether his allegation of overcrowding concerned one or more cells, and so on. Equally vague are the applicant’s allegations concerning the other aspects of the conditions of his detention, such as sanitary conditions, natural and artificial lighting and ventilation.

97.  As regards the Government’s submissions, the Court notes that they provided the list of all the cells in which the applicant had been detained at the Kharkiv SIZO; they also specified the floor surface (as well as certain other details) in respect of most of them (see paragraph 41 above). However, the Government did not give any information as to the capacity and the actual number of occupants of any of the cells in question.

98.  Accordingly, having regard to all of the available material and the parties’ arguments (see paragraphs 37-45 above), the Court finds that it cannot be established that the applicant’s detention in the Kharkiv SIZO was affected by severe overcrowding of the kind that could entail, on its own, a violation of Article 3 (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 163-67, 15 December 2016). Nor can it be found that the cumulative effect of the other aspects of the detention that the applicant complained about reached the threshold of severity required to characterise the treatment as inhuman or degrading, within the meaning of Article 3.

99.  It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

100.  That being so, the Court does not consider it necessary to address the Government’s objection that the applicant had failed to exhaust all the domestic remedies.Medical care

101.  The Court reiterates that an unsubstantiated allegation that medical care has been non-existent, delayed or otherwise unsatisfactory is normally insufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question; medical treatment that was sought, provided, or refused; and some evidence – such as expert reports – which is capable of disclosing serious failings in the applicant’s medical care (see, for example, Krivolapov v. Ukraine, no. 5406/07, § 76, 2 October 2018, with further references).

102.  The burden of proof is then shifted to the Government to provide explanations and supporting documents. Thus, an ample medical file proving that constant medical supervision and adequate medical care have been provided might refute an applicant’s view regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009).

103.  The Court notes that in the present case the applicant’s complaint regarding his medical care in the Kharkiv SIZO was limited to vague, general and incoherent accusations against the authorities that were not supported by any evidence (see paragraphs 46-51 above). On the contrary, it can be seen from the Government’s detailed submissions (which were based on the applicant’s complete medical file) that he received constant and adequate medical assistance (see paragraphs 52-64 above).

104.  The Court therefore also rejects this complaint as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention and, as in respect of the previous complaint, does not consider it necessary to examine the non-exhaustion argument of the Government.Transportation on hearing days

105.  The Court observes that, similarly to the complaints concerning the conditions of detention and medical care in the Kharkiv SIZO, the applicant’s complaint concerning his transportation on hearing days is too vague to form a basis for an arguable clam (see, conversely, Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 104, 3 December 2015).

106.  Accordingly, this complaint must also be rejected, in compliance with Article 35 §§ 3 (a) and 4 of the Convention, as being manifestly ill‑founded.Alleged ill-treatment by the Oleksiyivska Prison officers

107.  In so far as the applicant’s complaints relate to his alleged ill‑treatment by officers of Oleksiyivska Prison, he did not present any evidence that this treatment had been habitual, endorsed or deliberately tolerated by either the management of Oleksiyivska Prison or the domestic prison system as a whole. The Court therefore agrees with the Government that the applicant should have made the authorities aware of his alleged suffering in this respect (see Logvinenko v. Ukraine, no. 13448/07, § 62, 14 October 2010, with a further reference to Aliev v. Ukraine ((no. 2) (dec.), no. 33617/02, 14 October 2008)).

108.  In these circumstances, the Court finds that the applicant failed to show that he had exhausted domestic avenues for redressing his complaint about the officers’ conduct, and upholds the Government’s objection of non‑exhaustion.

109.  This part of the application should therefore be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

110.  The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long. The provision relied on reads as follows in the relevant part:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”Admissibility

111.  The Court notes that this part of the application 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.MeritsThe parties’ submissions

112.  The applicant maintained his complaint that the length of his pre‑trial detention had been excessive and unjustified.

113.  The Government contested the applicant’s argument, stating that his detention had been justified and of a reasonable length.The Court’s assessment

114.  The general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been summarised in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 5 July 2016).

115.  Turning to the circumstances of the present case, the Court notes that the applicant was detained, within the meaning of Article 5 § 1 (c) of the Convention, from 27 November 2006 until 23 January 2008, from 19 March until 17 November 2009, and from 9 September 2010 until 27 July 2011 (see paragraphs 7, 20, 21, 24-26 and 28 above). His pre-trial detention therefore lasted two years and eight and a half months, which is not short in absolute terms (see, for example, Doronin v. Ukraine, no. 16505/02, § 61, 19 February 2009).

116.  The Court furthermore observes that the seriousness of the charges against the applicant and the risk of his absconding or interfering with the investigation were mentioned in the initial order for his detention (see paragraph 12 above). However, that reasoning did not evolve with the passage of time. Moreover, when deciding to keep the applicant in detention after his case had reached the judicial stage of the proceedings and after it had been remitted for retrial, the Izyum Court and the Regional Court, respectively, failed to give any reasons whatsoever for their decisions (see paragraphs 18, 21, 23 and 26 above).

117.  In a number of cases, including in the leading case of Kharchenko v. Ukraine (no. 40107/02, §§ 80-81 and 99, 10 February 2011), the Court has already found violations of Article 5 § 3 in respect of issues similar to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case.

118.  There has therefore been a violation of Article 5 § 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF the LENGTH OF PROCEEDINGS

119.  The applicant also complained that the length of the criminal proceedings against him had been unreasonable. Article 6 § 1 of the Convention, in so far as relevant, provides as follows:

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

120.  The Court notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.Merits

121.  The applicant maintained that the overall duration of the proceedings in his case had not been justified and that the authorities had been responsible for it.

122.  The Government contested the applicant’s claim, stating that his case had been complex from both the legal and factual point of view and that it had involved numerous investigative measures. According to the Government, the period to be taken into consideration had lasted from 7 December 2006 (the date of the applicant’s arrest within the context of the criminal proceedings) until 27 July 2011 (the date of the first-instance court’s judgment).

123.  The Court finds that the period to be taken into consideration started on 27 November 2006 (see paragraphs 6 and 7 above) and ended on 17 April 2012 (see paragraph 29 above). Accordingly, it lasted for five years and almost five months, which included the pre-trial investigation and judicial examination by courts at two instances.

124.  The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).

125.  Contrary to the Government’s submissions, the Court considers that the applicant’s case, which concerned one episode only, with generally undisputed facts, was not complex.

126.  The case was remitted for additional pre-trial investigation and for retrial because of procedural violations attributable to the authorities (see paragraphs 21 and 25 above). The Court further observes that the Government did not show that the applicant, from his side, had been responsible for any delays in the proceedings.

127.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those raised in the present case (see Kiryakov v. Ukraine, no. 26124/03, §§ 62-66, 12 January 2012, and Pélissier and Sassi, cited above, § 75).

128.  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. On the whole, having regard to its case-law on the subject, the Court finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

129.  There has accordingly been a breach of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

130.  The applicant further complained that during his detention the authorities denied him the possibility to receive visits from the woman who he claimed to be his common-law wife, Ms Ko. He relied on Article 8 of the Convention, which reads as follows in the relevant part:

“1.  Everyone has the right to respect for his private and family life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”AdmissibilityApplicability of Article 8 and the existence of “interference”

131.  Although the Government did not dispute the applicability of Article 8 of the Convention to the circumstances of the present case, the Court considers it necessary to examine the inextricably linked questions of applicability and the existence of “interference” at the stage of admissibility (see Denisov v. Ukraine [GC], no. 76639/11, §§ 93-94, 25 September 2018, and, for the application of that approach in a comparable situation, see Bigun v. Ukraine [Committee], no. 30315/10, §§ 24 and 29-33, 21 March 2019).

132.  The Court notes that, according to the applicant, Ms Ko. was his common-law wife, which Ms Ko. herself confirmed (see paragraphs 27 and 72 above).

133.  According to the Court’s case-law, the existence or non-existence of “family life” is essentially a question of fact, which depends upon the existence of close personal ties. The notion of “family” in Article 8 concerns marriage-based relationships, and also other de facto “family ties” where the parties are living together outside marriage or where other factors have demonstrated that the relationship in question has sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017, with further references).

134.  Turning to the present case, the Court takes note of certain undisputed facts indicating the lack of such close personal ties between the applicant and Ms Ko. Namely, it was established within the context of the criminal proceedings against the applicant that, until October 2006, he had been co-habiting with Ms G. (see paragraph 6 above). Furthermore, in April 2007 the applicant requested that Ms Kr., to whom he referred as his “wife”, be admitted to the proceedings in the capacity of his lay representative. However, Ms Kr. then informed the trial court that they had divorced (see paragraph 19 above).

135.  The Court also observes that, according to Ms Ko.’s submissions, she had learned, “by pure chance”, of the applicant’s arrest three and a half years later (see paragraph 72 above) – in other words, in May 2010. The applicant lodged his first request for a meeting with Ms Ko. on 5 July 2010 (see paragraph 73 above). It has neither been alleged by the applicant nor suggested by any of the case-file material that he sought any contact with Ms Ko. before that.

136.  Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the complained-of restriction on the applicant’s visits by Ms Ko. constituted an interference with his “private life” within the meaning of Article 8 of the Convention, starting only from 5 July 2010. Accordingly, that provision is applicable to the applicant’s situation from that day onwards and not before.

137.  It follows that, in so far as the applicant raised this complaint in respect of his detention prior to 5 July 2010, it should be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention as being incompatible ratione materiae with the Convention provisions.Otherwise as to admissibility

(a)   Refusal to allow Ms Ko. to visit the applicant between 5 July 2010 and 17 April 2012

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

(b)   Refusal to allow Ms Ko. to visit the applicant during his post-conviction detention (after 17 April 2012)

139.  The Government observed that, during the applicant’s post‑conviction detention, his visiting rights had been regulated by Article 110 of the Code of Enforcement of Sentences. Under that provision, the applicant had been entitled to short-term visits of up to four hours by relatives and other persons and to long-term visits by close relatives only (see paragraph 84 above). The Government observed that the applicant had received a visit from Ms Ko. on the same day that it had been requested by Ms Ko. – 7 July 2012 (see paragraph 78 above). Accordingly, the Government argued, had there been requests for more visits, they would have been granted too.

140.  The applicant contested that argument, without providing any details.

141.  The Court finds the Government’s arguments convincing. It notes that the applicant did not show that post-conviction he had sought to receive visits from Ms Ko. on any other occasion than on 7 July 2012. Nor did he suggest that his failure to request such visits could be in any way attributable to the authorities (compare Bigun, cited above, § 31).

142.  The Court therefore rejects this complaint as being manifestly ill‑founded, in compliance with Article 35 §§ 3 (a) and 4 of the Convention.MeritsThe parties’ submissions

143.  The applicant maintained his complaint in general terms.

144.  The Government argued that the requirements of Article 8 of the Convention had been complied with.

145.  They submitted that, prior to 17 April 2012, the applicant’s right to receive visits from relatives or other persons had been regulated by Article 162 of the Code of Criminal Procedure and section 12 of the Pre‑Trial Detention Act providing that the official or authority in charge of the case could allow such visits. In the Government’s opinion, the authorities’ refusals of the applicant’s two requests for visits by Ms Ko. during that period had been in compliance with the above-mentioned legal provisions.The Court’s assessment

146.  To comply with Article 8, an interference with an applicant’s “private life” must be “in accordance with the law”, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim.

147.  According to the Court’s case-law, the expression “in accordance with the law” in Article 8 § 2 requires, among other things, that the measure or measures in question should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate their conduct (see Khoroshenko v. Russia [GC], no. 41418/04, § 110, ECHR 2015, with further references).

148.  The Court has already found violations of Article 8 of the Convention in similar cases against Ukraine, having established that the legislative provisions referred to by the Government – namely Article 162 of the Code of Criminal Procedure and Section 12 of the Pre-Trial Detention Act (see paragraphs 82 and 86 above), as in force at the relevant time – did not indicate with reasonable clarity the scope and manner of the exercise of discretion conferred on the public authorities in respect of restrictions on visits to detainees by their relatives or other persons. Those provisions did not require them to give any reasons for their discretionary decisions or even to take any formal decision that could be appealed against, and therefore contained no safeguards against arbitrariness or abuse (see Shalimov v. Ukraine, no. 20808/02, §§ 84-91, 4 March 2010, and Feldman v. Ukraine (no.2), no. 42921/09, §§ 22-29, 12 January 2012).

149.  In the present case the domestic court did not even refer to the above provisions, but relied on Article 345 of the Code of Criminal Procedure and stated that Ms Ko. could not be allowed to pay a visit to the applicant, because there was no evidence that she was his “close relative” (see paragraphs 77 and 83 above). In the light of that reasoning, the Izyum Court’s additional argument – that Ms Ko. had not herself formally asked for a visit – was without relevance.

150.  The Court finds, in these circumstances, that it cannot be said that the interference with the applicant’s right to respect for his private life, which existed from 5 July 2010 until 17 April 2012 (see paragraphs 137 and 142 above), was “in accordance with the law”, as required by Article 8 § 2 of the Convention.

151.  This finding obviates the need to determine whether the interference was “necessary in a democratic society” in respect of one of the aims enumerated in Article 8 § 2.

152.  There has therefore been a violation of Article 8 of the Convention on account of the restriction on the applicant’s right to receive visits from Ms Ko. during the period from 5 July 2010 until 17 April 2012.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

153.  The applicant also raised a number of other complaints:

-          under Article 3: that during his arrest he had been beaten and that there had been no effective domestic investigation into the matter; and that on an unspecified date he had been placed in solitary confinement in the Kharkiv SIZO for six days, during which time he had been subjected to “physical pressure” and threatened in “a cruel manner”;

-          under Article 5 § 1: that his arrest on 27 November 2006 and subsequent detention until 7 December 2006 had been unlawful;

-          under Article 6 §§ 1, 2, 3 (a), (b), (c) and (d): that the charges against him had been fabricated; that the judges dealing with his case had been biased; that many of his procedural requests and objections had been unlawfully rejected; that he had not been allowed to study all the material pertaining to the case; that the performance of the lawyer appointed for him had been poor; that Ms Ko. had not been admitted to the proceedings as his lay representative; and that principal witnesses had not been summoned;

-          under Article 8: that the staff of the Kharkiv SIZO had hindered his correspondence with the Court, and that he had not been informed of the deaths of his parents;

-          under Article 1 of Protocol No. 1: that during his detention some of his property, including his dwelling and personal possessions, had been damaged and stolen;

-          under Article 3 of Protocol No. 7: that he should have been paid compensation for the judicial mistake owing to which the judgment of 17 November 2009 had been quashed; and

-          under Article 4 of Protocol No. 7: that the ruling of the Regional Court of 9 September 2010 ordering his retrial had been unfair.

154.  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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

155.  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.”Damage

156.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.

157.  The Government submitted that the claim was excessive and unsubstantiated.

158.  The Court considers that the applicant must have suffered anguish and distress on account of the violations found in the present case. Ruling on an equitable basis, the Court awards him EUR 2,000 in respect of non‑pecuniary damage.Costs and expenses

159.  The applicant also claimed 5,000 Ukrainian hryvnias (UAH) for the costs and expenses incurred before the Court and UAH 500 for postal expenses. In support of his claim, he submitted two legal assistance contracts: one signed by him and Ms Braslavska on 14 July 2012, indicating that the amount of the legal fees would be established later; and another one signed by Ms Ko. on his behalf and Ms Braslavska on 2 June 2013, indicating that the lawyer’s remuneration in the amount of UAH 5,000 was payable to the latter immediately. The applicant also submitted a number of postal receipts.

160.  The Government contested the above claims as unsubstantiated.

161.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.Default interest

162.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints concerning the length of applicant’s pre-trial detention, the length of the criminal proceedings against him, as well as the restriction on his right to receive visits from Ms Ko. during the period from 5 July 2010 to 17 April 2012, admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 5 § 3 of the Convention;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against the applicant;Holds that there has been a violation of Article 8 of the Convention on account of the restriction on the applicant’s right to receive visits from Ms Ko. during the period from 5 July 2010 to 17 April 2012;

5.Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O’Leary
Deputy RegistrarPresident

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