CASE OF KRIVOLAPOV v. UKRAINE

FOURTH SECTION

CASE OF KRIVOLAPOV v. UKRAINE

(Application no. 5406/07)

JUDGMENT

STRASBOURG

2 October 2018

FINAL

02/01/2019

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

In the case of Krivolapov v. Ukraine,

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

Paulo Pinto de Albuquerque, President,
Ganna Yudkivska,
Faris Vehabović,
Iulia Antoanella Motoc,
Georges Ravarani,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 4 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 5406/07) 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 Igor Aleksandrovich Krivolapov (“the applicant”), on 25 April 2007.

2. The applicant was represented by Mr T.O. Kalmykov, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, from the Ministry of Justice.

3. The applicant alleged, in particular, that he had been detained in poor conditions, that his detention had been unlawful and lengthy and that he had had no enforceable right to compensation in that regard. He furthermore complained that the length of the criminal proceedings against him had been unreasonable and that his right to the presumption of innocence had not been respected.

4. On 18 February 2017 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961 and lives in Kramatorsk.

A. Background facts

6. In July 2001 a journalist, Mr Igor Aleksandrov, was beaten to death by unknown persons in the premises of the local television company in Slovyansk, which he headed. He was the author of a number of television programmes on corruption and organised crime in the region.

7. The above tragic event sparked a broad public outcry.

8. In August 2001 the police arrested a certain V. on suspicion of Mr Aleksandrov’s murder. V. was homeless and had no means of subsistence, being newly released from prison, where he had served a sentence for theft. Although he confessed to the crime in question many times, his statements lacked coherence. Eventually, he mentioned that he had entered into an agreement with a certain B., also a former convict, who had promised him a car and an apartment in exchange for his confessing to the journalist’s murder. B. himself had been acting upon the instructions of certain law‑enforcement officials. He had assured V. that the latter would be taken care of in prison and that his term of imprisonment would be minimal.

9. It appears that B. went missing in October 2001.

10. In May 2002 the first-instance court acquitted and released V. In July 2002 he died, supposedly of heart failure. Subsequently, a criminal investigation was launched into V.’s suspected poisoning. Its outcome is not clear from the case-file materials.

11. On an unspecified date criminal proceedings were initiated in respect of the assumed murder of B., even though his body had not been found.

12. At the time of the events the applicant held the post of deputy head of the Kramatorsk City Police Department.

B. Criminal proceedings against the applicant

13. On 28 January 2004 criminal proceedings were instituted against the applicant in respect of a suspected abuse of office having led to grave consequences. Namely, he was suspected of having falsified the criminal case against V. According to the prosecution, the applicant, aiming to avoid responsibility for the failure to uncover the journalist’s murder, had instructed B. to find a vulnerable person who would agree to confess to the crime in question in exchange for remuneration. Accordingly, B. had convinced V. to play that role. The applicant was also suspected of having instructed his subordinates to either bribe or coerce a taxi driver into committing perjury with a view to his acting as a witness against V.

14. On 10 February 2004 the applicant was arrested as a suspect.

15. On 13 February 2004 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) remanded the applicant in custody pending trial. His pre-trial detention was subsequently extended on many occasions.

16. On various dates in 2004 further criminal cases were opened against the applicant and other persons in respect of: several counts of suspected kidnapping and aggravated murder and a further episode of abuse of office (selling a car which had been impounded as material evidence). Furthermore, a criminal case was opened against the applicant in respect of B.’s murder. All the cases in question were joined to the one initiated earlier.

17. During his questioning on 8 November 2004 the applicant confessed to having falsified, together with another police officer, the criminal case against V., as well as to having been involved in V.’s poisoning and to having murdered B.

18. On 28 November 2004 the applicant retracted his statements of 8 November 2004 and lodged a complaint with the Prosecutor General’s Office, submitting that he had been coerced into self-incrimination under psychological pressure.

19. On 5 April 2005 the Supreme Court extended the term of the applicant’s pre-trial detention to eighteen months (until 10 August 2005) in the light of the particular complexity of the proceedings.

20. On 8 July 2005 the pre-trial investigation was declared completed. The investigator also made a formal declaration that the case file was available for inspection by the accused and their lawyers.

21. On 14 July 2005 the applicant was given access to the case file.

22. On 5 August 2005 the Kyiv City Court of Appeal (“the Kyiv Court”) extended the applicant’s pre-trial detention to twenty months (until 10 October 2005) on the grounds that the applicant and his lawyers had not finished studying the case file, which consisted of over a hundred volumes. The applicant’s lawyer submitted that the extension was not justified as, in any event, they had not received access to all the case-file materials. His argument was dismissed. The court based its ruling on Articles 156 and 165‑3 of the Code of Criminal Procedure (see paragraph 61 below).

23. On 6 October and 8 December 2005, and on 6 March and 7 April 2006, the Kyiv Court extended the applicant’s pre-trial detention, respectively, to twenty-two, twenty-five, twenty-six and twenty-seven months (until 10 May 2006) on the same grounds as before.

24. On 28 April 2006 the case file was sent to the Supreme Court for it to determine the court which would conduct the trial.

25. On 23 May 2006 the Supreme Court referred the case to the Zaporizhzhya Regional Court of Appeal (“the Zaporizhzhya Court”).

26. On 12 September 2006 the Zaporizhzhya Court held a preparatory hearing. It decided to keep the earlier chosen preventive measure in respect of the applicant.

27. On 18 June 2008 the trial court allowed a request by the prosecutor for the charge regarding B.’s murder to be severed into a separate set of proceedings. That part of the case was sent to the Prosecutor General’s Office for additional investigation. There is no information on any further developments in those proceedings or their outcome.

28. On 17 December 2008 the trial court severed into a separate set of proceedings another charge against the applicant – concerning suspected abuse of office leading to grave consequences (the falsification of the criminal case against V.) – and remitted it to the prosecution authorities for additional investigation.

29. The remaining charges against the applicant, in respect of which the Zaporizhzhya Court continued his trial, concerned several counts of kidnapping and murder, as well as abuse of office on account of his having sold the evidence.

30. On 19 February 2009 the Zaporizhzhya Court delivered a judgment by which it acquitted the applicant of kidnapping and murder for lack of evidence of his guilt. The applicant was, however, found guilty of abuse of office in respect of his having sold evidence. He was sentenced to five years and nine days’ imprisonment. Given that the applicant had already served that term, he was released in the court room. As a preventive measure until the verdict became final, he was placed under an undertaking not to leave the town.

31. On the same date the trial court issued a separate ruling (see paragraph 59 below) with a view to bringing to the attention of the Prosecutor General’s Office certain shortcomings in the pre-trial investigation, which it considered to have been superficial and inadequate. The court also noted that throughout 2005-2008 the investigator in charge had given numerous interviews to various television and print media depicting the applicant and the other co‑accused as guilty, without changing their names (see paragraphs 41-43 below). The Zaporizhzhya Court held that such behaviour had been in breach of the accused’s right to presumption of innocence and had amounted to exerting pressure on the court.

32. On 29 October 2009 the Supreme Court quashed the lower court’s decision of 17 December 2008 (see paragraph 28 above), as well as both the judgment and the separate ruling of 19 February 2009 (see paragraphs 30 and 31 above). It criticised the Zaporizhzhya Court, in particular for not having made any specific recommendations as to how the investigation could be improved. As regards the separate ruling, the Supreme Court noted that it had wrongly been issued in respect of the part of the proceedings remitted for additional investigation. The criminal case was remitted for fresh examination by a first-instance court. The Supreme Court, however, upheld the part of the trial court’s decision placing the applicant under an undertaking not to leave town as a preventive measure.

33. Pursuant to a decision of the President of the Supreme Court, the case was referred to the Lugansk Regional Court of Appeal (“the Lugansk Court”) as a first-instance court, which started the trial on 22 February 2010.

34. On 25 January 2012 the Lugansk Court ordered the applicant’s pre-trial detention following a request made by the prosecutor. The case file before the Court does not contain a copy of that order.

35. On 6 February 2012 the trial court severed the charge of abuse of office (concerning the illegal sale of evidence) into a separate set of proceedings and remitted it to the prosecution authorities for additional investigation.

36. On 20 March 2012 the Lugansk Court found the applicant guilty of abuse of office leading to grave consequences (concerning the falsification of the case file in respect of V.) and sentenced him to seven years’ imprisonment, with no right to hold public posts for three years. It also found the applicant guilty of perjury and sentenced him to four years’ imprisonment on that count. As regards the last-mentioned charge, the court held that the prosecution had become time-barred and that the applicant was not therefore to serve that part of the sentence. By the same judgment, the trial court acquitted the applicant of the other charges (creating a criminal gang, as well as several counts of kidnapping and aggravated murder) for want of evidence. It decided to keep the applicant in detention as a preventive measure until the verdict became final.

37. On 17 August 2012 the Rubizhne Town Court (“the Rubizhne Court”) held a preparatory hearing for the applicant’s trial in respect of the abuse-of-office charge regarding the illegal sale of evidence, which had been remitted for additional investigation on 6 February 2012 (see paragraph 35 above). It observed that, while the issue of a preventive measure had not been dealt with within that set of proceedings, the applicant was already detained in a different context under the judgment of 20 March 2012. Accordingly, the Rubizhne Court ordered his pre-trial detention as the most appropriate preventive measure pending trial in respect of the severed charge also.

38. On 12 December 2012 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”) modified the Lugansk Court’s judgment of 20 March 2012. It held that the applicant was to be absolved from serving the sentence altogether, given that the only charge which had entailed the imposition of that sentence (abuse of office on account of the falsification of the case file in respect of V. – see paragraph 36 above) had become time-barred as well. The Higher Specialised Court therefore ordered that the applicant be released.

39. The applicant, however, continued to be detained as a preventive measure in the context of his trial on the charge of abuse of office concerning the illegal sale of material evidence, which remained pending (see paragraph 37 above).

40. On 24 January 2013 the Rubizhne Court allowed a request lodged by the applicant for the criminal proceedings to be discontinued because the only remaining charge against him (abuse of office on account of the illegal sale of evidence) had become time-barred. The applicant was released in the court room.

C. Media coverage of the criminal proceedings against the applicant

41. In 2005 a thirty-minute documentary “The Deadly Agreement” (Смертельна угода) was broadcast on one of the national television channels, STB. As indicated during the programme, it was created with the support of the Security Service of Ukraine and the Ministry of the Interior (specifically, its Main Department for the Organised Crime Combatting). The documentary was about the agreement between V. and the law-enforcement officials, and the subsequent murder of V. and B. The applicant was named as the person who had proposed the agreement and as B.’s murderer. The programme comprised, in particular, short films, in which the roles of the applicant and the other persons concerned were played by professional actors. One of those short films depicted the applicant murdering B. Furthermore, there were numerous interviews given by the investigator in charge, as well as by several officials of the Security Service. They shared their version of the events of the case in the form of what appeared to be factual statements, without specifying at what stage the proceedings had reached at the times of the various interviews. The fate of V. was described with a lot of emotion. The programme also contained extracts from the applicant’s questioning of 8 November 2004, during which he confessed to having falsified the criminal case against V. and to having murdered B. (see paragraph 17 above).

42. The above-mentioned programme was transmitted on STB at least twelve times between 2005 and 2008, and possibly later.

43. In addition, the investigator in charge of the applicant’s case gave numerous interviews (making the same assertions as those made in the aforementioned programme) to various printed media.

D. Conditions of the applicant’s detention in the Lugansk SIZO

44. In 2012 the applicant was detained, with brief interruptions, in the Lugansk SIZO. According to the applicant, he was detained there from 20 March until 28 December 2012; however, according to the Government’s submissions and the documents in the case file, the period of his detention in that facility was from 25 January until 20 December 2012.

1. Material conditions of detention

45. According to the applicant, the cells were extremely small and lacked proper ventilation; the sanitary conditions were very poor; the toilet was not separated from the living area and the applicant was obliged to take meals in its close vicinity; and the bed was infested with bedbugs. Furthermore, the applicant was allegedly often deprived of the daily hour‑long outdoor walk provided for by law.

46. The Government submitted that they were not in a position to provide a description of the material conditions of the applicant’s detention in the Lugansk SIZO given that, following the outbreak of the armed conflict in the Eastern Ukraine in 2014, Lugansk was on non-Government controlled territory.

2. Medical care

47. On 25 January 2012, upon the applicant’s arrival at the Lugansk SIZO, he underwent a medical examination, chest X-ray and blood analysis, with no particular health concerns being reported. At the same time, the doctors documented his medical history – namely, that he had suffered from hepatitis and had had surgery on account, in particular, of an inguinal hernia and an umbilical hernia. According to the applicant’s medical records, he did not raise any health-related complaints at that stage.

48. On 30 January 2012 a dermatologist and a psychiatrist examined the applicant in the Lugansk SIZO and reported the absence of any acute health concerns. At the same time, he was registered for medical monitoring on account of hypertension, chronic pancreatitis and chronic cholecystitis.

49. Following complaints made by the applicant of headaches, dizziness and numbness of the tongue, on 28 November 2012 he was examined by a doctor of the Lugansk SIZO, who diagnosed a hypertensive crisis and administered him some medications. It was recommended that the applicant be examined by a general doctor of the inter-regional hospital attached to the Lugansk SIZO and that he undergo an electrocardiogram.

50. On 29 November 2012 the applicant underwent an electrocardiogram, which showed that he had a rotated heart and indications of left ventricular hypertrophy.

51. On 6 December 2012 a general doctor of the inter-regional hospital attached to the Lugansk SIZO examined the applicant and diagnosed him with: ischemic heart disease, stable effort angina, diffuse cardiosclerosis, cardiac insufficiency and high-risk hypertensive heart disease. Certain medications were prescribed to the applicant and it was recommended that he undergo inpatient medical treatment in the SIZO’s medical unit and that his blood pressure be monitored.

52. The Government were not able to provide further factual details as to whether the applicant had undergone the recommended medical treatment because they did not have access to the Lugansk SIZO’s documentation (see also paragraph 46 above).

53. According to the applicant, he was not hospitalised.

54. On 24 January 2013 the applicant was released (see paragraph 40 above).

55. The case file contains an extract from the applicant’s clinical record from the cardiological department of the town hospital, in which he underwent inpatient medical treatment from 10 until 22 April 2013 on account of headaches and chest pain, accompanied by shortness of breath. According to the applicant’s explanation summarised in that record, he had been suffering from headaches and hypertension since 2000 and his health had been deteriorating because of stressful circumstances in his life since September 2004. A limited improvement in the applicant’s health condition was reported at the time of his discharge.

56. The case file also contains a report of the ultrasound scan of the knee joints that the applicant underwent on 5 July 2013. He was diagnosed with a “Baker’s cyst” (a pocket of fluid forming a lump behind the knee) in respect of both knees.

E. Compensation proceedings brought by the applicant

57. The applicant lodged a civil claim against the State Treasury seeking compensation for non-pecuniary damage in respect of his unlawful criminal prosecution and detention under the Compensation Act (see paragraph 62 below).

58. Courts at three levels of jurisdiction (the Kramatorsk City Court on 10 December 2013, the Donetsk Regional Court of Appeal on 17 January 2014 and the Higher Specialised Court on 17 February 2014) rejected his claim as being without basis. They held that the Compensation Act did not provide for compensation in the applicant’s situation because he had been acquitted only in part.

II. RELEVANT DOMESTIC LAW

59. Article 23-2 of the 1960 Code of Criminal Procedure (“the CCP”), which was repealed with effect from 19 November 2012, provided that if a court discovered that there had been a violation of law and/or of citizens’ rights in the course of a pre-trial inquiry or investigation, or during the examination of a case by a lower-level court, it had to issue a separate ruling by which it drew the attention of the respective authorities to the established facts and directed them to take certain measures to remedy the situation. Failure to take the requisite measures was considered to constitute an administrative offence.

60. Article 253 of the CCP provided that if a judge decided to commit an accused for trial, he had to decide, among other things, whether to change, discontinue or apply a preventive measure.

61. Other relevant provisions of the CCP read as follows:

Article 156. Duration of pre-trial detention.

“Detention during a pre-trial investigation shall not last more than two months.

When it is impossible to complete the investigation within the period provided in Part 1 of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, the term of pre-trial detention may be extended:

(1) for up to four months – upon a request approved by the prosecutor supervising the compliance of the bodies conducting the relevant inquiry or investigation with the laws, or at the same prosecutor’s request, by a judge of the court which ordered the application of the preventive measure;

(2) for up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, regional prosecutors, Kyiv and Sevastopol prosecutors [or] prosecutors of equal rank, or upon the same prosecutor’s request in cases concerning serious and particularly serious crimes, by a judge of the court of appeal;

(3) for up to eighteen months – upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor’s request in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine.

...

After the completion of the investigation the case file shall be presented to the detained accused and his defence not later than a month before the expiry of the pre-trial detention time-limit set under paragraph 2 of this Article.

If the time-limit for providing the accused and his defence with the case file is not complied with ... the accused shall be released immediately after the expiry of the maximum term of detention set by Part 2 of this Article. In such a case, the accused and his defence shall continue to be entitled to familiarise themselves with the case file.

... If the accused and his defence received access to the case file [in due time, as noted above], but that time appeared insufficient, the respective term may be extended by a judge of an appellate court at the request of an investigator approved by the Prosecutor General of Ukraine or his deputy, or upon a request coming directly from the [aforementioned prosecutorial officials]. Where there are several co-accused held in pre-trial detention and if at least one of them finds [the term for allotted for the study of the case-file] insufficient, a request [for its extension] may also be applicable to those other co‑accused who has/have completed his/their study of the case file, if his/their pre‑trial detention remains necessary and there are no grounds for changing that preventive measure. ...”

Article 165-3: Procedure for extending the term of pre-trial detention

“When there are no grounds for changing the preventive measure or if it is impossible to complete the investigation of the case in respect of the part relating to proven charges, an investigator, upon the approval of the relevant prosecutor, or of the same prosecutor, shall apply to the court with a request for an extension of the term of pre-trial detention. The request shall contain reasons for it being necessary to extend the term, circumstances which must be examined, evidence that the detainee committed the crime [of which he or she is accused], and grounds [indicating] the necessity to maintain the preventive measure. ...

Having received the request, the judge shall examine the criminal case material; if necessary, the judge shall question the accused [and] the investigator, [and] hear the prosecutor [and the defence counsel (if the latter has appeared before the judge), following which the judge shall adopt a resolution extending the term of pre-trial detention, if there are grounds for this, save in a case provided in paragraph 7 of Article 156 of the Code, or shall refuse to extend it.

The prosecutor, suspect, accused or his defence or legal representative may lodge an appeal against the resolution of the judge within three days of its delivery. Such an appeal shall not suspend the execution of the judge’s resolution. The resolutions issued by judges of a court of appeal and of the Supreme Court shall not be subject to an appeal.”

62. The relevant provisions of the Compensation Act (1994, with further amendments) are quoted in the Court’s judgment on the case of Yaroshovets and Others v. Ukraine, nos. 74820/10 et seq., §§ 62-63, 3 December 2015).

THE LAW

I. SCOPE OF THE CASE

63. In his reply to the Government’s observations regarding the conditions of detention in the Lugansk SIZO, the applicant additionally complained of the conditions of his transportation for court hearings throughout the entire period of his detention, as well as the allegedly unjustified application of disciplinary measures to him in detention.

64. The Court notes that these new, belated complaints do not constitute an elaboration of the applicant’s original complaint, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine, no. 26230/11, § 52, 3 March 2016).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

65. The applicant complained of the material conditions of his detention and the lack of proper medical care in the Lugansk SIZO. He relied on Article 3 of the Convention, which reads as follows:

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

A. The parties’ arguments

66. The Government submitted that the applicant had not exhausted domestic remedies in respect of this complaint because he had not raised it before the prosecutors or other domestic authorities.

67. In substantiation of that submission, the Government referred to the case of Sadkov v. Ukraine (no. 21987/05, 6 July 2017, § 85), in which the Court acknowledged that the applicant’s complaints regarding specific health problems had been duly dealt with by the authorities. In the Government’s opinion, there was no indication that the applicant’s complaints of inadequate medical care in the present case, had he raised any at the domestic level, would have been treated in a deficient manner.

68. The Government observed that they did not have access to the relevant documents from the Lugansk SIZO in order to formulate a position on the substance of the applicant’s grievances. At the same time, they argued that the applicant had failed to show that the conditions of his detention in that facility had been in breach of his rights under Article 3 of the Convention.

69. The applicant contested the Government’s arguments. He noted that he had complained on many occasions about the conditions of his detention to the trial court and that the judge had sent letters in that regard to the administration of the Lugansk SIZO, albeit to no avail. As regards the possibility of complaining to the prosecution authorities, the applicant considered it pointless, given their alleged lack of independence and their partiality.

70. As regards the material conditions of the applicant’s detention, he observed, referring to his initial account (see paragraph 45 above), that he had not considered it necessary to provide a detailed description of them, as, in his opinion, the Court was aware of the existing realities in all Ukrainian detention facilities. The applicant provided some general information as to the allegedly poor toilet and laundry arrangements in Ukrainian detention facilities, without specifying to which detention facility he was referring, if any, from his own experience. He furthermore went on to elaborate on his complaints regarding the conditions of his detention in the Kyiv and Zaporizhzhya Pre-Trial Detention Centres (SIZOs), which had already been declared inadmissible by the Court (see paragraph 4 above).

71. As regards the issue of medical care in detention, the applicant argued that the state of his health had been incompatible with the conditions of his detention and that, as a result, his health had seriously deteriorated. The applicant furthermore observed that in November and December 2012 his scheduled transfer to other facilities in order to allow him to participate in investigative measures had been cancelled twice owing to his high blood pressure. Furthermore, according to the applicant, the medical conclusion that his state of health called for immediate hospitalisation (see paragraph 51 above) had been disregarded and, instead of being placed in a hospital for medical treatment, he had been transferred to another detention facility for investigative activities.

72. The applicant furthermore submitted, in his reply to the Government’s observations, that as a result of his detention in inadequate conditions he had been diagnosed with two Baker’s cysts; he did not submit further details or explanations.

B. The Court’s assessment

73. The Court does not consider it necessary to examine the Government’s objection based on non-exhaustion of domestic remedies given that the applicant’s complaints under this head are in any event manifestly ill‑founded for the following reasons.

74. The Court reiterates that, under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI).

75. The Court notes that information about the material conditions of detention falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Even so, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints. The Court has considered as evidence in such situations, for example, written statements by fellow inmates or photographs provided by applicants in support of their allegations (see, for example, Golubenko v. Ukraine (dec.), no. 36327/06, § 52, 5 November 2013, with further references).

76. The Court furthermore 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, Valeriy Samoylov v. Russia, no. 57541/09, § 80, 24 January 2012, and Yevgeniy Bogdanov v. Russia, no. 22405/04, § 93, 26 February 2015).

77. Turning to the present case, the Court notes that the applicant failed to specify in which cells he had been detained in the Lugansk SIZO, let alone give a detailed description of them or support his account with any evidence. The remainder of his complaint about the material conditions of detention there – in particular, as regards the nutrition and sanitary conditions – was likewise couched in broad terms and not supported by any evidence (see and compare Moroz v. Ukraine, no. 5187/07, § 47, 2 March 2017).

78. In so far as the applicant alleged that he had not been provided with adequate medical care in detention, the Court observes that this complaint is vague too. The only specific allegation made by the applicant in that context was that he had not been hospitalised, contrary to the doctor’s recommendation of 6 December 2012 (see paragraphs 51 and 71 above). In the absence of access to the applicant’s medical file, the Government were not in a position to comment on that allegation. Even assuming that, as alleged by the applicant, he had not been hospitalised, the Court notes that there was no indication of any particular urgency in respect of the recommended hospitalisation of the applicant. Nor was it disputed by the applicant that he had been receiving medications following his medical examination of 6 December 2012, and he did not argue that that medicinal treatment had been deficient. Nor did the applicant allege that the state of his blood pressure had not been monitored. Moreover, the Court notes that the applicant was released on 24 January 2013. He could have undergone a complete medical check-up upon his release and could have obtained a medical opinion as to the deterioration of his health in detention, if any, as well as the quality of medical care provided for him. However, as can be seen from the case-file material (see paragraph 55 above), the applicant applied for medical treatment only two and a half months after his release in respect of long-standing health concerns. It appears that he did not complain to doctors of any deficiencies in the medical care he had received while in detention. Lastly, the applicant failed to show how his diagnosis of Baker’s cysts (which was established about half a year after his release) could have been caused by the treatment he had received from the authorities (see paragraph 56 above).

79. In the light of the foregoing, the Court considers that neither of the two complaints under this head (regarding the material conditions of the applicant’s detention and the medical care provided for him in the Lugansk SIZO) have been properly substantiated by the applicant and must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

80. The applicant also complained of a violation of his rights under Article 5 §§ 1, 3 and 5 of the Convention, which provide as follows in the relevant part:

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

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

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

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

81. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 5 § 1 of the Convention

(a) The parties’ arguments

82. The applicant complained that his detention from 10 August 2005 until 19 February 2009 had been unlawful and arbitrary. He observed, in particular, that the maximum term of pre-trial detention set by the national legislation at eighteen months had expired in his case on 10 August 2005 and that he should have been released on that day.

83. The Government submitted that the applicant’s detention had been in compliance with both the domestic legislation and the requirements of Article 5 § 1 of the Convention. They noted that the file in the applicant’s criminal case had been particularly voluminous, which had necessitated extending the time-limits for its study by the accused (including the applicant) and that this had resulted, in turn, in further extensions of his pre‑trial detention.

(b) The Court’s assessment

84. It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013).

(i) As regards the applicant’s detention from 10 August 2005 until 10 May 2006

85. The Court observes that the applicant’s detention during this period – that is to say for nine months – was based on five judicial decisions extending its term for periods varying from one to three months, on the grounds that he and the other co-accused needed time to study the voluminous case file, which comprised over a hundred volumes (see paragraph 23 above).

86. The Court notes that the Ukrainian Code of Criminal Procedure, as worded at the material time, provided for a maximum of eighteen months’ pre‑trial detention. At least a month before the expiry of that period the accused and his defence were to be provided with access to the case file. If that was done any later, the accused was to be released immediately upon the expiry of the eighteen-month time-limit. However, if the accused started studying the case file within the established one-month time-limit, but that time appeared insufficient, the term of his/her detention could be extended by a judge of an appellate court at the investigator’s request, and in agreement with the Prosecutor General (see paragraph 61 above).

87. In the present case the applicant was de facto provided with access to the case file on 14 July 2005 (see paragraph 21 above) – that is to say in breach of the one-month time-limit, which expired on 10 July 2005.

88. In sum, the Court considers that the applicant’s detention during the period in question raises serious issues as regards its compliance with the domestic law and, furthermore, as regards the existence of sufficient safeguards against arbitrariness.

(ii) As regards the applicant’s detention from 10 May 2006 until 12 September 2006

89. The Court notes that the period in question was the one between the expiry of the pre-trial detention ordered by judicial decisions and the preparatory hearing held by the Zaporizhzhya Court, during which time the applicant’s detention was not covered by any judicial decision. This issue has often been criticised by the Court as stemming from legislative lacunae in Ukraine (see Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011, with further references) and it has manifested itself in the circumstances of the present case too.

(iii) As regards the applicant’s detention from 12 September 2006 until 19 February 2009

90. It appears that during this period the applicant was detained on the basis of the ruling of the Zaporizhzhya Court of 12 September 2006, following his committal for trial. Under the legislation in force at the material time, the judge was required neither to give reasons for maintaining the applicant’s detention nor to set any time-limits (see paragraph 60 above).

91. The Court has held that at the time in question it was a recurrent practice in Ukraine for court orders issued during the trial stage to set no time‑limits for the further detention of a defendant, and to uphold rather than extend his or her previous detention, and that that practice was not compatible with the requirements of Article 5 § 1 of the Convention (see Kharchenko, cited above, §§ 75 and 98).

92. That conclusion remains relevant in the circumstances of the present case. Thus, the Court considers that the Zaporizhzhya Court’s decision of 12 September 2006 (see paragraph 26 above) left the applicant in a state of uncertainty as to the grounds of his detention after that date and its possible duration.

(iv) Conclusion

93. In the light of the foregoing considerations, the Court concludes that the applicant’s detention from 10 August 2005 until 19 February 2009 was not in accordance with Article 5 § 1 of the Convention.

94. There has therefore been a violation of that provision.

2. Alleged violation of Article 5 §§ 1 and 3 of the Convention in respect of the applicant’s detention from 25 January 2012 until 24 January 2013

(a) The parties’ arguments

95. The applicant complained that his detention from 25 January 2012 until 24 January 2013 had been excessively long and that it had not been based on relevant and sufficient reasons.

96. He submitted, in particular, that he had never breached the obligation imposed on him not to leave the town (which had been applicable to him from 19 February 2009 until 25 January 2012) and that there had therefore been no grounds for placing him in pre-trial detention once again at that stage.

97. The Government observed that they had no access to the archives of the Lugansk Court (see also paragraph 46 above). As a result, they did not have a copy of the impugned order of 25 January 2012 and were not able to comment on its contents. Nor did the Government consider it possible, in the light of that circumstance, to comment on the applicant’s continued detention in the context of that set of proceedings until the order for his release of 12 December 2012 (it had remained unimplemented given the fact that a separate set of proceedings was ongoing – see paragraphs 36-39 above).

98. The Government further submitted that the applicant’s detention after 12 December 2012 until his de facto release on 24 January 2013 had been based on the ruling of the Rubizhne Court of 17 August 2012 (see paragraph 37 above), which they considered had complied with the Article 5 requirements.

(b) The Court’s assessment

99. Having regard to the close affinity between the relevant principles developed under Article 5 §§ 1 (c) and 3 of the Convention, the Court considers it appropriate to examine the present complaint under both provisions simultaneously (see, for example, Korneykova v. Ukraine, no. 39884/05, § 38, 19 January 2012, and Sizarev v. Ukraine, no. 17116/04, §§ 161-164, 17 January 2013).

100. The Court observes that on 25 January 2012 – that is to say almost three years after the applicant’s release subject to an obligation not to abscond, which had been applicable starting from 19 February 2009 – he was detained again as a preventive measure.

101. In the absence of a copy of the impugned court order or the respective prosecutor’s application of 25 January 2012, the Court is unable to reach any conclusion as regards the relevance and sufficiency of reasons advanced by the domestic authorities in justification of that measure. This does not, however, prevent the Court from adjudicating on the applicant’s complaint as a whole.

102. The Court observes that on 20 March 2012 the trial court delivered a verdict in one set of the criminal proceedings against the applicant and sentenced him to seven years’ imprisonment. On 12 December 2012 that verdict was quashed and the proceedings were discontinued in that part. There were, however, concurrent criminal proceedings against the applicant remaining at the pre-trial investigation stage during the entire period in question (see, in particular, paragraphs 35-40 above).

103. It follows that the applicant’s detention between 20 March 2012 and 12 December 2012 was based both on sub-paragraph (a) of Article 5 § 1 within those proceedings and on its sub-paragraph (c) within the proceedings severed on 6 February 2012 (see paragraph 35 above; compare Kushnir v. Ukraine, no. 42184/09, § 156, 11 December 2014). As the applicant was detained following conviction by a competent court, it is clear that his detention was lawful in terms of domestic law. The Court further observes that its actual length did not exceed his sentence. There is no other indication that his detention under the judgment of 20 March 2012 was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a) of the Convention.

104. As the Court has held in the cases of Borisenko v. Ukraine (no. 25725/02, § 44, 12 January 2012) and Ustyantsev v. Ukraine (no. 3299/05, § 82, 12 January 2012), Article 5 § 3 of the Convention does not apply to situations amounting to “lawful detention after conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention. The Court has found it difficult to see any practical purpose in requiring the State authorities to justify the detention of an applicant under Article 5 §§ 1 (c) and 3 of the Convention when such detention was justified under Article 5 § 1 (a). The Court has further held that any request for release in such cases would thus be limited to the purely hypothetical question of whether the person in question could be released if he was not already serving a prison sentence. Therefore, even if the applicant’s continuing detention within the meaning of Article 5 § 1 (c) ceased to be reasonable, it would not automatically cease to be lawful and justified under Article 5 § 1 (a).

105. Accordingly, the period to be taken into consideration in the present case under Article 5 §§ 1 (c) and 3 (in respect of which there are documents in the case file – see paragraph 101 above) is from 12 December 2012 (when the applicant, albeit released by a verdict delivered within one set of proceedings, continued to be detained as a preventive measure within another set of proceedings – see paragraphs 38-39 above) until 24 January 2013 (the date of the applicant’s actual release – see paragraph 40 above) – that is to say forty-three days.

106. The Court has held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. Justifications which have been deemed to constitute “relevant” and “sufficient” reasons (in addition to the existence of reasonable suspicion) in the Court’s case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-88, ECHR 2016 (extracts)).

107. No such reasons were advanced by the authorities in the present case in justification of the applicant’s detention during the period in question. Moreover, that issue was not even examined, and the only basis for the applicant’s detention was the Rubizhne Court’s ruling of 17 August 2012 – which had, in turn, merely referred to the concurrent proceedings against the applicant and his detention in that context (see paragraph 37 above).

108. It follows that there has been a violation of Article 5 §§ 1 and 3 of the Convention in respect of the applicant’s detention from 12 December 2012 until 24 January 2013.

3. Alleged violation of Article 5 § 5 of the Convention

109. The applicant also complained that he had no enforceable right to compensation in respect of the violations of his rights under the other paragraphs of Article 5.

110. The Government submitted that Ukrainian legislation provided for the possibility to claim compensation for unlawful detention, subject to a judicial decision acknowledging such unlawfulness. It was not, however, applicable to the circumstances of the present case because the applicant’s detention had been lawful.

111. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012, with further references).

112. Turning to the present case, the Court observes that the domestic courts rejected the applicant’s compensation claim in respect of his allegedly unlawful detention (see paragraph 58 above). At the same time, regard being had to the Court’s findings of a violation of paragraphs 1 and 3 of Article 5 (see paragraphs 94 and 108 above), paragraph 5 is applicable to the applicant’s situation. The Court must therefore ascertain whether the applicant will have an enforceable right at the domestic level to compensation for damage following the adoption of this judgment.

113. The Court has found in similar previous cases that the right to compensation under Article 5 § 5 of the Convention was not ensured in the Ukrainian legal system, should the Court find a violation of any preceding paragraphs of that Article (see, for example, Taran v. Ukraine, no. 31898/06, § 89, 17 October 2013, and Kushch v. Ukraine, no. 53865/11, § 136, 3 December 2015, with further references). It finds no reason to reach a different conclusion in the present case.

114. There has therefore been a violation of Article 5 § 5 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

115. The applicant also complained that the length of the criminal proceedings against him had been unreasonable. Article 6 § 1 of the Convention, as 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 ...”

A. Admissibility

116. 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.

B. Merits

117. 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.

118. The Government contested the applicant’s claim, stating that his case had been complex from both a legal and factual point of view. In particular, he had been charged with a number of serious crimes and the proceedings in question had involved many co-defendants, victims and witnesses.

119. The Court reiterates that 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).

120. Turning to the present case, the Court observes that the criminal proceedings against the applicant consisted of several interrelated episodes and lasted for a total of nine years. While admitting the complexity of the case, the Court has doubts as to whether the length of the proceedings was reasonable.

121. The Court notes the case was remitted for additional pre-trial investigation and for retrial because of procedural violations attributable to the authorities (see, in particular, paragraphs 28, 32 and 36 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.

122. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those in the present case (see Pélissier and Sassi, cited above, and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, §§ 166-172, 3 December 2015).

123. 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 considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

V. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

125. The applicant next complained of a violation of his right to the presumption of innocence under Article 6 § 2 of the Convention, which reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. Admissibility

126. The Court declares this complaint admissible given that it is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds.

B. Merits

127. The applicant complained that public officials had been involved in the media campaign surrounding his case; they had asserted his guilt prior to his conviction by a court, thus influencing public opinion and prejudging the case against him.

128. The Government argued that the authorities had been merely informing society of progress in a high-profile criminal case.

129. The Court reiterates the well-established principle of its case-law that Article 6 § 2 of the Convention bars officials from declaring a person guilty before that person’s conviction by a court. The officials may tell the public about criminal investigations by, for example, reporting suspicions, arrests, and confessions, if they do it discreetly and circumspectly. Choice of words matters (see Turyev v. Russia, no. 20758/04, § 19, 11 October 2016, with further references).

130. The Court considers that in the present case the statements made by the investigator and Security Service officials to the mass media in respect of the criminal proceedings against the applicant were far from discreet or circumspect. They amounted to an unqualified declaration of his guilt without even specifying what stage the proceedings were then at: the applicant’s full identity was disclosed to the public and he was labelled as a murderer and a falsifier of a highly sensitive criminal case (see paragraphs 41 and 43 above). Moreover, the Court observes that those statements were disseminated on many occasions in a documentary, which had been created with the direct support of the high-level State authorities and which contained extracts from the video of the applicant’s confession to the police (see paragraphs 17 and 41 above).

131. The Court considers that such statements of the State officials encouraged the public to believe the applicant to be guilty and prejudged the assessment of the facts by the relevant judicial authority.

132. The Court therefore concludes that there has been a violation of Article 6 § 2 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

133. 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

134. The applicant claimed 194,500 euros (EUR) in respect of non‑pecuniary damage.

135. The Government submitted that that claim was exorbitant and without basis.

136. The Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 20,000 in respect of non-pecuniary damage.

B. Costs and expenses

137. The applicant also claimed EUR 2,800 for the costs and expenses incurred before the Court, to be transferred to the account of Mr T. Kalmykov, his legal representative. He noted that this amount corresponded to legal fees of EUR 2,775 (thirty-seven hours at EUR 75 per hour) for the preparation of observations in response to those of the Government, and EUR 25 for administrative expenses (telephone calls, postal expenses, photocopying and other costs). To substantiate that claim, he submitted a contract for legal assistance dated 18 September 2017.

138. The Government contested the above claim as unfounded and excessive.

139. 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-mentioned criteria, the Court considers it reasonable to grant the applicant’s claim in part and to award him EUR 300 under this head, plus any tax that may be chargeable to the applicant. The award is to be paid into Mr Kalmykov’s bank account, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-17, 7 November 2013).

C. Default interest

140. 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 inadmissible the applicant’s complaints under Article 3 of the Convention;

2. Declares admissible the remainder of the application;

3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 10 August 2005 until 19 February 2009;

4. Holds that there has been a violation of Article 5 §§ 1 and 3 of the Convention in respect of the applicant’s detention from 12 December 2012 until 24 January 2013;

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

6. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the criminal proceedings against the applicant;

7. Holds that there has been a violation of Article 6 § 2 of the Convention;

8. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of legal costs before the Court (the net award to be paid into the bank account of the applicant’s lawyer, Mr Kalmykov); and

(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;

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

Done in English, and notified in writing on 2 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident

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