CASE OF OSAKOVSKIY v. UKRAINE

FIFTH SECTION

CASE OF OSAKOVSKIY v. UKRAINE

(Application no. 13406/06)

JUDGMENT

STRASBOURG

17 July 2014

FINAL

17/10/2014

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

In the case of Osakovskiy v. Ukraine,

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

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Vincent A. De Gaetano,
André Potocki,
Aleš Pejchal, judges,
Myroslava Antonovych, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 June 2014,

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

PROCEDURE

1. The case originated in an application (no. 13406/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Valeryevich Osakovskiy (“the applicant”), on 28 March 2006.

2. The applicant was represented by Mr G. Tokarev, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova.

3. The applicant alleged, in particular, that he had been ill-treated in custody; that the period of his detention had been unreasonable; that he had been deprived of access to a procedure whereby the lawfulness of his detention could be decided and that the criminal proceedings against him had been excessively lengthy.

4. On 6 June 2012 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Ms M. Antonovych to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Kharkiv.

A. First set of criminal proceedings against the applicant, his detention and purported ill-treatment by Leninskiy District police officers

6. In August 2003 F., a cashier in a game-machines arcade, was found at his workplace unconscious with head injuries. He died in hospital shortly afterwards.

7. On 8 June 2004 the applicant was arrested by the Leninskiy District police of Kharkiv (“the district police”) and confessed to having inflicted injuries on F. and robbed the arcade. According to the applicant, that confession was false and had been given by him as a result of ill-treatment. In particular, police officers had applied electric current to his body, suffocated him in a gas mask and applied various other unspecified torture techniques.

8. At an unspecified time on the date of the applicant’s arrest he was assigned a legal-aid lawyer, S.

9. Also on the same date the applicant had a confrontation with two witnesses, who claimed that they had seen him running near the arcade, with his bare chest covered in mud and blood, on the day when F. had been found injured.

10. On 9 June 2004 the applicant participated in a reconstruction of the crime scene and confirmed his confessional statements in presence of S.

11. On 10 June 2004 the applicant was indicted on charges of causing fatal injuries to F. and robbing the arcade. During questioning on that date he confirmed his previous statements. On the same date the Leninskiy District Court of Kharkiv (“the District Court”) remanded the applicant in custody, having found that there was a substantial risk that he might abscond or commit other crimes, as the charges against him were serious and he had no steady employment.

12. On 11 June 2004 the applicant was placed in the Kharkiv pre-trial detention facility (“the Kharkiv SIZO”), examined by the SIZO medical staff and certified as having no bodily injuries.

13. In July 2004 the Kharkiv Psychiatric Hospital, having conducted an in-patient psychiatric assessment of the applicant, issued an opinion that he was suffering from a mixed personality disorder, which did not prevent him from understanding the meaning of his actions or controlling them.

14. In July 2004 B., a privately hired lawyer, was admitted in the proceedings as a replacement for the legal-aid lawyer, S.

15. On 31 July 2004 the applicant, questioned in B.’s presence, retracted his previous confessions, claiming that they had been given under duress from the police, and pleaded innocent. Copies of his relevant statements and ill-treatment complaints have not been submitted to the Court.

16. On 4 August 2004 in a confrontation with the applicant, police officer B. denied having ill-treated him. On the same date the Leninskiy District Prosecutor’s Office (“the District Prosecutor’s Office”) refused to set up a criminal inquiry into the applicant’s allegations of ill-treatment for want of objective evidence. There is nothing to show that the applicant appealed against that decision.

17. On 18 August 2004 the applicant was committed to stand trial before the District Court.

18. On 13 September 2004 the District Court extended the applicant’s detention, having found no reasons to release him.

19. On 14 December 2004 the applicant complained in court that he had been ill-treated by the authorities with a view to extract self-incriminating statements and requested to be released against an obligation not to abscond. On the same date the District Court ordered the applicant’s release against an undertaking not to abscond. It noted that, notwithstanding the gravity of the charges against the applicant, there was no evidence that he might abscond or commit other crimes if at liberty.

20. On 16 March 2005 the District Court remitted the applicant’s case for further investigation, having found that the applicant should have been charged with murder, rather than with injuring F. The court also ordered that the applicant’s ill-treatment allegations be verified. By the same decision, the court remanded the applicant in custody again. The relevant part of the decision read as follows:

“The court also considers that the preventive measure in respect of [the applicant] should be replaced by a custodial one, since, if he remains at liberty, he may hide from the investigative authorities, which would interfere with the establishment of the true facts of the case”.

21. The applicant, represented by B., appealed, seeking, in particular, to be released from custody.

22. The prosecution also appealed, arguing, in particular, that the case had been ready for trial and that the legal classification of the applicant’s crime could have been decided in the course of the trial proceedings.

23. On 7 July 2005 the Kharkiv Regional Court of Appeal (“the Regional Court”) allowed the prosecution’s appeal and remitted the case for trial. It also rejected the applicant’s request for release from custody, noting that the District Court had properly assessed the facts and adduced sufficient reasons for remanding him in custody.

24. In August 2005 the District Court ordered the prosecutor’s office to inquire into the applicant’s ill-treatment complaints.

25. On 2 September 2005 the District Court adjourned the proceedings to enable the prosecutor’s office to carry out its inquiry into the applicant’s ill-treatment allegations.

26. On 12 September 2005 the applicant underwent a forensic medical examination, which found, in particular, that he had an old scar and an area with a modified skin on his body. However, it was not possible to establish whether he had sustained any injuries in June 2004. On the same date the district prosecutor’s office refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of such ill-treatment.

27. On 14 September and 3 November 2005 the applicant requested that he be released against an undertaking not to abscond. His requests were rejected by the District Court with reference to the gravity of the charges and the absence of grounds for release.

28. On 19 December 2005 the District Court remitted the criminal case against the applicant for further investigation, having found that insufficient evidence had been collected for his conviction and that procedures had been breached in collecting the evidence. The court also ordered a further inquiry into the applicant’s ill-treatment allegations. In the same decision the District Court refused the applicant’s request for release from custody, stating that the custodial preventive measure had been “properly applied”.

29. On 18 January 2006 the Kharkiv Regional Prosecutor’s Office revoked the decision of 12 September 2005 not to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment and ordered further inquiries.

30. On 4 February 2006 the district prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment complaints. They noted, in particular, that according to the applicant’s submissions, on 8 June 2004 two police officers, B. and M., had arrested him and taken him to a wooded area, where they had beaten and threatened him, demanding self-incriminating statements. Upon his arrival at the police station, they took him to the basement and continued beating him. They also made him smoke a cigarette while wearing a gas mask and applied electric current to his naked body. The district prosecutor’s office further noted that the applicant’s version of events was full of inconsistencies and wholly improbable. For instance, contrary to his allegations, it was physically impossible to smoke a cigarette in a gas mask without burning one’s face, which had not happened. In addition, the police officers could not possibly have tortured him in the basement, since the building at issue had no basement. They further noted that the applicant’s inconsistent conduct after arrest and his further submissions concerning ill-treatment might have been affected by his psychiatric diagnosis.

31. According to the applicant, he complained about that decision on various dates to different authorities, including the General Prosecutor’s Office, but to no avail. He did not submit copies of his relevant complaints to the Court.

32. On 1 March 2006 the applicant’s case was remitted to the District Court for trial.

33. On 14 April and 14 June 2006 the applicant requested that he be released against an undertaking not to abscond. On the same dates, the District Court refused his requests, finding no reasons for releasing him.

34. On 18 August 2006 the District Court acquitted the applicant of the charges and released him from custody. It noted, in particular, that the reconstruction of the crime scene of 9 June 2004 had been carried out in breach of various procedural requirements, which the applicant’s legal-aid lawyer S. had never complained about. In those circumstances, there were grounds to doubt that the applicant had been adequately represented at the beginning of the investigation and the court could therefore not conclude that his initial confessions had been genuine. The court held that in those circumstances, any doubts as to the applicant’s guilt should be interpreted in his favour and he should be acquitted.

35. On 30 October 2007 the Regional Court quashed the above judgment and ordered a further investigation of the charges against the applicant.

36. On 15 January 2008 the applicant was placed in hospital with acute sinusitis. On the same date the investigation was suspended.

37. On 31 January 2008 the applicant was discharged from hospital.

38. On 27 July 2012 the decision to suspend the proceedings was set aside and the investigation was resumed.

39. As of the last correspondence by the parties dated June 2013, the proceedings were pending.

B. Second set of criminal proceedings against the applicant and his purported ill-treatment in the Kharkiv SIZO

40. On 7 May 2004 D.’s body was found in a river. She appeared to have been strangled. On the same date the Chuguiv police instituted criminal proceedings into the circumstances of her death.

41. In August 2004 the Chuguiv Prosecutor’s Office identified the applicant as an acquaintance of D.’s and a potential suspect. They notified the administration of the Kharkiv SIZO, where the applicant was being detained at the material time.

42. At about 11.50 p.m. on 25 August 2004 the applicant’s cellmates in the SIZO called the authorities, alleging that he had engaged in self-injury. On the same date the applicant was examined by a SIZO medical professional, who recorded that he had cut his left arm several times. According to the applicant’s explanations addressed to the SIZO governor following the accident, he had cut himself with a razor blade intended for shaving because of his sudden anguish on learning that his wife had filed for divorce and that he was potentially facing a long-term prison sentence. The applicant’s cellmates gave similar explanations.

43. Following the incident, the SIZO governor sent the applicant’s medical records to the Kharkiv forensic experts facility, asking it to assess the gravity of the applicant’s injuries. He informed the experts that according to his information, the applicant had inflicted the injuries on himself at about 11.50 p.m. on 25 August 2004.

44. On 1 and 15 September 2004 the forensic experts informed the SIZO governor, after examining the records, that the injuries at issue could be classified as minor and that they could have been inflicted at the time and in the manner described in the governor’s letter.

45. On 2 September 2004 representatives of the Chuguiv police visited the applicant in the SIZO and took his fingerprints and samples of his blood and saliva in connection with the investigation of D.’s death.

46. On 3 and 20 September 2004 the SIZO governor concluded that there was no need to conduct further investigations into the applicant’s injuries of 25 August 2004. Referring, primarily, to the experts’ findings, the applicant’s own explanations and those of his cellmates and the SIZO staff questioned, he found that there was sufficient evidence that the applicant had spontaneously inflicted those injuries on himself when suffering an anxiety attack.

47. On 21 September 2004 the SIZO authorities took a statement from the applicant, in which he confessed to having killed D.

48. On 9 October 2004 the applicant was indicted on charges of killing D. and pleaded guilty during questioning by the Chuguiv police investigator.

49. On the same date the Chuguiv prosecutor dropped the charges against the applicant, having found that his statements were inconsistent with the objective evidence on the file.

50. On 11 November 2004 the criminal proceedings against the applicant were discontinued for lack of evidence of his involvement in D.’s murder. Subsequently the Regional Court convicted two other individuals of the crime at issue.

51. On 14 December 2004, during a court hearing in the first set of criminal proceedings against the applicant, he complained that he had been subjected to unlawful pressure and ill-treatment in the SIZO. He claimed, in particular, that in August and September 2004 he had been questioned off the record by the SIZO authorities and various other officers, who had coerced him to give self-incriminating statements concerning D.’s murder. In addition, the authorities had engaged his cellmates in threatening and harassing him with a view to obtaining such confessions. The applicant also said that, although the charges concerning D.’s murder had been dropped, he was afraid of similar pressure in connection with the criminal proceedings in F.’s case.

52. On various occasions between 2004 and 2006 the applicant complained to the prosecutor’s office and other authorities that he had been ill-treated in the SIZO with a view to making him confess to D.’s murder. No copies of the relevant complaints have been submitted to the Court. It appears from the summaries of the applicant’s complaints drafted by the prosecutor’s office that he maintained that he had been psychologically pressured on numerous unspecified occasions in August and September 2004. On 25 August 2004, in particular, warden K. and detainee L. had beaten him in K.’s office. When the applicant returned to his cell, detainees L. and P. continued to beat him, while other cellmates held him down. According to some of the summaries, the applicant maintained that his arm had been cut by his inmates, while according to others he had cut it himself in the hopes that the wardens would be called and he could get out of the cell.

53. On 27 April 2006 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that the SIZO governor’s conclusions of 20 September 2004 had been well-founded.

54. On 23 August 2006 the deputy regional prosecutor revoked the decisions of 20 September 2004 and 27 April 2006 and ordered a further inquiry into the circumstances in which the applicant had sustained his injuries and had falsely confessed to D.’s murder.

55. On 25 September 2006 the prosecutor’s office took a fresh decision not to institute criminal proceedings, having found that there was no ill-treatment case to answer. They referred, primarily, to the explanations provided by the applicant’s inmates in 2004 and to the questioning of the SIZO wardens. They noted, in particular, that according to M., the deputy SIZO governor, on 20 August 2004 the SIZO had received information from the Chuguiv police concerning the applicant’s possible involvement in D.’s murder. Following this information, the SIZO officers had questioned the applicant about the matter and he had volunteered his confession without any pressure having been applied to him.

56. The parties did not inform the Court whether that decision was further appealed against.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

57. The applicant complained that he had been ill-treated by Leninskiy police officers, the SIZO authorities and by his cellmates with a view to extracting self-incriminating statements. He invoked Article 3 of the Convention, which reads as follows:

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

A. Admissibility

1. Alleged ill-treatment by Leninskiy police officers

58. The Government maintained that the applicant’s complaints were manifestly ill-founded. In particular, there was no medical or other objective evidence to support them, despite the fact that the authorities had conducted a thorough investigation. The Government further argued that the applicant, who had been legally represented since the date of his arrest, had not availed himself of the opportunity to complain of his purported ill-treatment promptly, and his belated complaints had not been genuine. Furthermore, some of his allegations, such as that he had been ill-treated in the basement of the police station, were blatantly false, as the building in question had no basement.

59. The applicant contested those submissions. He noted that following his arrest he had been very vulnerable and had not been in a position to file complaints or demand an independent medical examination. The legal-aid lawyer appointed by the investigative authorities had not been interested in representing his interests. Although the applicant had first complained of his ill-treatment on 14 December 2004, during his questioning in court, the first forensic assessment of his injuries had been carried out only in September 2005, when it had no longer been possible to trace any injuries. There was, however, indirect evidence of his ill-treatment. In particular, on 18 August 2006 he had been acquitted of the offence he had confessed to having committed in June 2004 as a result of his ill-treatment. In its judgment, the trial court had acknowledged that the applicant’s legal-aid lawyer had not been active in representing his interests and that it had not been possible to exclude the possibility that the applicant had given a false confession. The applicant also presented a copy of a handwritten statement signed by V.F., a family acquaintance, on 13 January 2013. According to this statement, on 8 June 2004 V.F. had driven the applicant’s father to the Leninskiy Police station and on their way they had bought analgesic medicines purportedly requested for the applicant by the police. Lastly, he submitted that in contesting his allegations of ill-treatment as improbable, the authorities had distorted the facts. For instance, the police station was constructed in the 19th century. All buildings of that period had been constructed according to typical projects, which had mandatory basement floors. Moreover, when referring to “smoking” in a gas mask, the applicant had meant that he had been forced to inhale cigarette smoke while wearing a gas mask, rather than that he had been forced to smoke a cigarette.

60. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32, and Kozinets v. Ukraine, no. 75520/01, § 53, 6 December 2007). At the same time, the Court, sensitive to its subsidiary role, must be cautious in taking on the tasks of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).

61. Turning to the facts of the present case, the Court notes that the applicant, who was legally represented from the first day of his arrest, has not submitted any medical or other objective evidence of his purported ill-treatment in June 2004. On the contrary, it appears from the medical certificate issued on 11 June 2004 (three days after the applicant’s arrest) that he had no traces of any injuries and filed no relevant complaints on that date.

62. The Court is mindful of the applicant’s arguments concerning his vulnerability and the fact that he did not trust the legal-aid lawyer who represented him at the material time, but notes that in July 2004, that lawyer was replaced by a lawyer chosen by the applicant. Moreover, the case file shows that once the new lawyer had been admitted in the proceedings, the applicant retracted his confessional statements and complained of ill-treatment in July 2004 (see paragraphs 14-15 above). This information is inconsistent with that contained in the applicant’s observations, in which he maintained that he had first informed the authorities of his purported ill-treatment in December 2004 only. The Court also notes that the applicant’s description of his purported ill-treatment is couched in very general terms. Neither in his initial submissions, nor in his observations in response to those of the Government, did the applicant indicate the details concerning the ill-treatment complained about, including the exact timing of his arrest and the appointment of the legal-aid lawyer; the role of individual officers or the manner, in which they applied particular ill-treatment techniques to specific parts of his body. The applicant also did not submit to the Court copies of his domestic ill-treatment complaints. It is therefore impossible for the Court to discern the relevant details from them or assess whether, as argued by the applicant, the domestic authorities distorted his factual submissions.

63. Overall, given that the applicant, who was represented by a legal-aid lawyer from the date of his arrest and soon afterwards by a lawyer of his choice, has failed to submit objective evidence in support of his complaint, and to provide a detailed and coherent account of the relevant facts, the Court finds that he has failed to substantiate his complaint under Article 3 of the Convention about alleged ill-treatment by the Leninskiy police officers.

64. This aspect of the case is therefore manifestly ill-founded and must be declared inadmissible in accordance with Article 35 § 3 (a) and 4 of the Convention.

2. Alleged ill-treatment in the Kharkiv SIZO

65. The Government submitted that the applicant’s complaint concerning his ill-treatment in the Kharkiv SIZO was also manifestly ill-founded. According to the medical evidence, the only injuries suffered by the applicant during his detention in the SIZO were the razor cuts on his left arm, inflicted on 25 August 2004. Following a thorough investigation, it had been established that the applicant had cut himself with a razor blade intended for shaving, as a result of a sudden anxiety attack. The State authorities had not been responsible for those injuries, nor could they have foreseen the applicant’s behaviour.

66. The applicant contested those submissions. He maintained that in August and September 2004 the State authorities had been fabricating charges against him concerning the murder of D. and had continuously ill-treated him in detention with a view to making him confess to that offence. The razor cuts sustained on 25 August 2004 had in fact been inflicted by his cellmates, who had been helping the authorities to put pressure on him. Together with his false confession of D.’s murder, they served as objective evidence of the applicant’s ill-treatment.

67. Having analysed the parties’ submissions in the light of the documents in its possession, the Court considers that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

68. The applicant maintained that the razor cuts of 25 August 2004 had been inflicted by his cellmates, who had also beaten and ill-treated him in other ways on that date. Other injuries had never been recorded, as the SIZO doctor had examined him only superficially and had focused on his cuts. Subsequent forensic assessments had been carried out in the applicant’s absence and had been based only on the information presented by the SIZO authorities. Their version, according to which the applicant had cut himself as a result of an unpredictable and sudden anxiety attack, was improbable and unsubstantiated. It also could not explain why he had falsely confessed to D.’s murder.

69. The Government did not comment on the merits of the applicant’s complaint.

70. The Court reiterates that to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim (see, for example, Valašinas v. Lithuania, no. 44558/98, §§ 100-01, ECHR 2001-VIII). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000‑XI).

71. In assessing evidence of ill-treatment, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events at issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of those under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

72. It is not disputed between the parties in the present case that on 25 August 2004 the applicant, detained in the Kharkiv SIZO, sustained razor-blade cuts to his left arm. It also follows from the materials on the file that in September and October 2004 the applicant, while still in custody, pleaded guilty of D.’s murder and that he was subsequently found innocent of that crime, for which the real culprits had been identified.

73. The Court considers that the applicant’s version – according to which the police and the SIZO authorities ill-treated him continuously with a view to extorting self-incriminating statements, and his injuries recorded on 25 August 2004 were part of that ill-treatment – is insufficiently clear and detailed. It is true that his account is not supported by evidence enabling the Court to establish, beyond reasonable doubt, the relevant factual circumstances and the veracity of the applicant’s allegations. However, the authorities have also failed to collect objective evidence to rebut the applicant’s arguments. Their version – according to which the applicant cut himself following a sudden anxiety attack and confessed to D.’s murder of his own volition – is largely based on the explanations given by the persons implicated by the applicant in his ill-treatment, which were taken at face value. No effort was made to collect objective evidence including by way of having the applicant examined by independent medical professionals. Nor does the official version explain the applicant’s motivation to plead guilty of a serious crime which he had not committed. The Court notes that, as it follows from the available materials, the applicant was in fact visited in the SIZO by the police officers investigating D.’s murder and was questioned by the wardens concerning the matter (see paragraphs 45 and 55 above). The records of the relevant conversations have not been provided to the Court and it is not clear whether the applicant’s procedural rights, including the right to defence, were observed in the course of those questionings.

74. Overall, the Court finds that the respondent Government failed to provide a satisfactory and convincing explanation based on objective evidence concerning the circumstances in which the applicant, detained and under their control, suffered the injuries on 25 August 2004 and decided to plead guilty of a murder of which he was subsequently found to be innocent. In these circumstances it considers that the State is to be held responsible for those injuries. It also accepts the applicant’s version that he was induced to confess to D.’s murder.

75. These findings are sufficient for the Court to conclude that the applicant was subjected to inhuman and degrading treatment in the Kharkiv SIZO. There has therefore been a breach of Article 3 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

76. The applicant also complained that the length of his detention had been unreasonable. He invoked Article 5 § 3 of the Convention, which reads as follows:

“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.”

A. Admissibility

77. The Government did not contest the admissibility of this aspect of the case.

78. The Court notes that the applicant’s detention consisted of two separate periods: (1) from 8 June until 14 December 2004 and (2) from 16 March 2005 until 18 August 2006. The present application having been lodged on 28 March 2006, the Court is precluded from assessing the reasonableness of the first period of detention separately by virtue of the six-month rule (see Idalov v. Russia [GC], no. 5826/03, §§ 129-130, 22 May 2012). Consequently, the period to be taken into account is one year and five months. However, as both periods of the applicant’s detention formed part of the same set of criminal proceedings against him, when assessing the overall reasonableness of his detention during the second period the Court will take into account the fact that he had previously spent time in custody (see ibid., § 130).

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

B. Merits

80. The applicant alleged that the length of his detention had been unreasonable, as there had been no real risk that he would abscond, interfere with the investigation or engage in further criminal activity. On the contrary, his conduct during the period when he was released against an undertaking not to abscond (between 14 December 2004 and 16 March 2005) proved that he had dutifully observed his procedural obligations and had not abused his liberty.

81. The Government maintained that, given the circumstances of the case and particularly the gravity of the charges against the applicant, there had been no breach of Article 5 § 3 in the present case.

82. The Court observes that on 14 December 2004 the District Court released the applicant from custody, having found that there was no evidence that he would breach his procedural obligations if at liberty (see paragraph 19 above). It has not been argued that the applicant breached any such obligations following his release. Nevertheless, on 16 March 2005 he was again remanded in custody on the grounds that he might abscond (see paragraph 20 above). The District Court cited no reasons in its decision for fearing such behaviour on the applicant’s part. Further decisions refusing the applicant’s requests for release were couched in formulaic terms, largely referring to the gravity of the charges against him and the absence of any reasons justifying his release, rather than the persistence of grounds for his continuous detention.

83. The Court has frequently found violations of Article 5 § 3 of the Convention where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81, 10 February 2011; Tretyakov v. Ukraine, no. 16698/05, § 59, 29 September 2011, and Idalov, cited above, § 147).

84. Assessing the applicant’s personal situation in the light of the principles developed in its jurisprudence, the Court considers that there is no reason to depart from its previous approach. It finds that the authorities remanded and held the applicant in custody between 16 March 2005 and 18 August 2006 on grounds which cannot be regarded as “sufficient” to justify his continuous detention.

85. Accordingly, there has been a breach of Article 5 § 3 of the Convention in the present case.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

86. The applicant complained that during the period of his detention between 16 March 2005 and 18 August 2006 he had had no access to an effective procedure by which the lawfulness of his detention could be decided. He relied on Article 5 § 4 of the Convention, which reads as follows:

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

A. Admissibility

87. The Government submitted that the applicant’s complaint was not specific and was therefore manifestly ill-founded.

88. The applicant contested the Government’s assertion. He noted that during the period complained of, he had lodged numerous applications for release from custody, which had been rejected by the court on a purely formalistic basis, without due consideration of his personal circumstances. He also submitted that the situation giving rise to his complaint was similar to the one which the Court had already found to be indicative of a systemic breach of Article 5 § 4 in its judgment in the case of Kharchenko v. Ukraine (cited above).

89. Having analysed the parties’ submissions in the light of the documents in its possession, the Court considers that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

90. The applicant alleged that Article 5 § 4 of the Convention had been breached in his case, as all his requests for release from custody lodged after March 2005 had been refused on formal grounds, without any review of the necessity for his continuous detention in the light of his personal circumstances.

91. The Government contested those submissions. They noted that the applicant had fully benefitted from the procedure required by the impugned provision, as all of his requests for release had been promptly examined by a competent court.

92. The Court notes that in the aforementioned case of Kharchenko (cited above, §§ 84-85 and 100), as well as in a number of other cases against Ukraine, it has already noted that by virtue of Article 5 § 4 of the Convention detainees were entitled to have access to a procedure whereby the reasonableness of their continuous detention could be speedily examined in the light of their particular situations and individual circumstances (see, for example, Buryaga v. Ukraine, no. 27672/03, §§ 73-74, 15 July 2010; Vitruk v. Ukraine, no. 26127/04, §§ 92-93, 16 September 2010, and Tretyakov, cited above, § 66). The Court observes that in the present case the judicial authorities reviewed and refused the applicant’s requests for release on many occasions. However, these decisions did not contain any analysis of his personal circumstances and submissions. In view of this, the Court sees no reason to depart from its earlier case-law and concludes that the procedure by which the lawfulness of the applicant’s detention was reviewed did not meet the standards required by Article 5 § 4 of the Convention.

93. There has therefore been a breach of Article 5 § 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

94. The applicant further complained that the first set of criminal proceedings against him had been unreasonably long. He referred to Article 6 of the Convention, which, insofar as relevant, reads 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

95. The Government did not contest the admissibility of this aspect of the case. They maintained that the period to be taken into account had started on the date of the applicant’s arrest on 8 June 2004.

96. The applicant agreed that the relevant period started on 8 June 2004 and noted that the proceedings had not yet ended.

97. The Court reiterates that in criminal matters, the “reasonable time” referred to in Article 6 § 1 of the Convention begins to run as soon as a person is “charged”, in other words, given official notification by the competent authority of an allegation that he has committed a criminal offence. This definition also corresponds to the test whether “the situation of the [suspect] has been substantially affected”. As regards the end of the “time”, in criminal matters the period governed by Article 6 § 1 of the Convention covers the whole of the proceedings at issue, including appeal proceedings (see, for example, Vergelskyy v. Ukraine, no. 19312/06, § 114, 12 March 2009).

98. As regards the facts of the present case, the Court notes that the applicant was arrested and first questioned as a suspect on 8 June 2004. As of the date of the last correspondence from the parties (June 2013), the proceedings were still pending. The proceedings had thus lasted nine years up to that date.

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

B. Merits

100. The applicant argued that the length of the proceedings, which had been marked by repeated remittals for additional investigation and prolonged periods of inactivity on the part of the authorities, had been unreasonable. Although there had been insufficient evidence to convict him, the authorities had kept him in a state of prolonged uncertainty as to his fate.

101. The Government contested that assertion and maintained that the length of the proceedings had been reasonable.

102. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, 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).

103. It further notes that the case against the applicant was repeatedly remitted for retrial or further investigation. It also observes that, based on the available materials, following the last remittal of the case for further investigation on 30 October 2007, the proceedings lay dormant. In these circumstances the Court does not find any plausible explanation for the overall duration of the proceedings at issue.

104. There has therefore been a breach of Article 6 § 1 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

105. The applicant also complained that the criminal proceedings against him and the divorce proceedings lodged by his wife against him had been unfair; that the judicial authorities had refused to provide him with copies of unspecified documents and that his persecution by the authorities was probably in retaliation for his affiliation with an opposition political party. The applicant referred to Articles 2, 4, 6, 8, 9, 10, 13, 14, 16 and 34 of the Convention in connection with those complaints.

106. In his observations in response to those of the Government, the applicant additionally alleged that the investigation of his ill-treatment complaints had been ineffective.

107. Having considered the aforementioned complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

108. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

109. 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

110. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

111. The Government maintained that this claim was exorbitant and unsubstantiated.

112. The Court considers that the applicant suffered anguish and distress on account of the facts giving rise to the finding of the violations of Articles 3, 5 and 6 of the Convention in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

113. The applicant also claimed EUR 1,352 in legal fees incurred before the Court. By way of justification of the claim, the applicant provided a copy of his contract with Mr G. Tokarev dated 17 August 2012, a document of acceptance of his services, according to which the lawyer had worked on the applicant’s case for thirteen hours, and billing documents, which are hardly legible. As follows from the documents on file, the applicant was obliged to pay Mr Tokarev EUR 1,300 in legal fees and an additional sum of EUR 52 (4% of the service fees) in administrative expenses. The applicant also claimed EUR 94 for “other litigation expenses”.

114. The Government maintained that the lawyer’s fees were exorbitant and that there was no evidence that the applicant had actually paid them. As regards the administrative and other litigation expenses, they were unsubstantiated.

115. The Court observes that according to its 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 applicant the sum of EUR 1,300 in legal fees.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning ill-treatment in the Kharkiv SIZO, length of detention, lack of access to a procedure whereby the lawfulness of detention could be decided by a competent tribunal and the length of the first set of criminal proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

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

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

5. Holds that there has been a violation of Article 6 § 1 of the Convention;

6. Holds

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

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,300 (one thousand three 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;

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

Done in English, and notified in writing on 17 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

Full & Egal Universal Law Academy