CASE OF PIKHUN v. UKRAINE

FIFTH SECTION

CASE OF PIKHUN v. UKRAINE

(Application no. 63754/09)

JUDGMENT
 

STRASBOURG

12 December 2019

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

In the case of Pikhun v. Ukraine,

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

André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 19 November 2019,

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

PROCEDURE

1.  The case originated in an application (no. 63754/09) 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 Denis Aleksandrovich Pikhun (“the applicant”), on 24 November 2009 and on 25 January and 23 June 2010.

2.  The applicant was represented by Mr O.M. Voronkov, a lawyer practising in Dnipro. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.

3.  On 22 February 2018 notice of the complaints under Articles 3, 5 and 6 of the Convention concerning the applicant’s alleged ill-treatment by the police as well as the lack of effective investigation in that connection, the unlawfulness of his detention on remand, and the unreasonable length of the criminal proceedings against him was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1980 and lives in Dnipro (named Dnipropetrovsk at the material time).Criminal investigation in respect of the applicant, his arrest and detention

5.  On 25 September 2006 a criminal investigation for illegal arms possession was instituted in respect of the applicant, who was a police officer at the material time.

6.  In the course of the investigation, the applicant was arrested and detained several times following court orders to that effect and then later released (most recently on 13 March 2009).

7.  In the meantime charges of murder, threat and abuse of power were brought against the applicant.

8.  On 30 November 2009 the applicant was arrested by the police in connection with new charges of firearms theft.

9.  On 3 December 2009 the Leninskyy District Court of Dnipropetrovsk (“the District Court”) ordered the applicant’s detention on remand.

10.  On 28 January 2010 the District Court held a hearing in the absence of the applicant and his defence lawyer and extended the applicant’s detention on remand up to four months, that is to say until 30 March 2010. The applicant appealed against that decision.

11.  On 1 February 2010 the criminal case against the applicant, together with the relevant bill of indictment, was transferred to the District Court for consideration on the merits.

12.  On 4 February 2010 the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”) returned without examination his appeal against the decision of the District Court of 28 January 2010 on the grounds that the criminal case was being heard by the trial court.

13.  On 26 February 2010 in the course of the preparatory hearing of the applicant’s criminal case, the District Court remitted the case for additional investigation. The court also ordered the applicant’s continued detention on remand. No reasons for that detention or its time-limits were given.

14.  On 12 July 2010 the case file was again transferred to the trial court.

15.  On 4 October 2011 the District Court found the applicant guilty of issuing threats to kill with a weapon, of theft and of the unlawful use of firearms, and sentenced him to four years’ imprisonment.

16.  On 13 December 2011 the Regional Court quashed the above sentence and remitted the case to the trial court for fresh examination. The court released the applicant after replacing the preventive measure with an undertaking not to abscond.

17.  In the course of the examination of the case by the trial court, the prosecution limited the scope of the charges against the applicant to the charge of firearms theft.

18.  On 22 November 2013 the District Court found the applicant guilty of firearms theft but exempted him from any criminal liability due to the expiration of the statutory time-limits.

19.  On 20 February 2014 the Regional Court quashed the above sentence and remitted the case to the trial court for fresh examination.

20.  According to the information provided by the applicant, on 11 December 2018 the trial court terminated the proceedings against him in view of the charges having been dropped.

21.  According to the available material, in the course of the trial the court held eighty-six hearings dealing with the merits of the case (hearing the parties’ submissions and the witness testimony, and examining the evidence). In addition, sixty-six hearings were adjourned because the prosecution, the victim, an expert or a witness failed to appear. On those occasions the trial court ordered the witnesses’ enforced appearance but to no avail. On twenty-one occasions the court hearing was adjourned owing to the applicant’s or his defender’s absence. On eighteen occasions the hearing was adjourned owing to the judge’s inability to hear the case (participation in other proceedings, annual leave, withdrawal from the case, expiration of term of office). The latter set of adjournments led to extension of the time of case’s examination to approximately one year and six months.The applicant’s alleged ill-treatment by the police and the ensuing investigation

22.  In the course of the investigation, on 30 November 2009, the applicant came along with his defence lawyer to the prosecutor’s office following a request issued by the investigator. New charges of firearms theft (see paragraph 8 above) were brought against him.

23.  According to the applicant, after having refused to answer questions concerning new charges, he was physically assaulted by three police officers. The police officers throttled him and then handcuffed him. Shortly afterwards, as he was moved from the premises of the prosecutor’s office, the police officers hit his head against a car which was parked nearby. Although he was losing consciousness, the police officers continued throttling him and hitting him on the head.

24.  The applicant stated that he had been then brought to the police station where the police officers had continued ill-treating him. They had stubbed a cigarette out on his left hand and demanded that he refrain from asserting his rights and interests within the criminal investigation. The applicant had felt sick in his stomach and had asked the police to call an ambulance. Later the same day, he had been taken to the temporary detention centre, where an ambulance had been called for him.

25.  According to the report of the temporary detention centre (“the ITT”) issued on 22 December 2009, at the time of his admission on 30 November 2009 the applicant was recorded as having a wound on the head, scratches on the head and neck, and bruises on his wrists. The report further states that the applicant had complained of headache and sickness in his stomach. He had been given medical care by an ambulance team. The report further stated that on 2 December an ambulance had been called again but the applicant had refused the medical care offered.

26.  On 29 December 2009, 2 June, 9 and 12 August 2011 the applicant requested that the detention authorities provide him with the copies of documents concerning his medical examination upon admission to the detention facilities in November-December 2009 and other relevant documents concerning his state of health while in detention. According to the applicant, none of his requests were granted.

27.  Since 1 December 2009 the applicant has submitted numerous complaints to the prosecution authorities of having been ill-treated by police officers on 30 November 2009.

28.  On 3 December 2009, in the course of questioning as a suspect within the criminal case against him, the applicant provided the investigator with a detailed account of the alleged ill-treatment of 30 November 2009.

29.  On 28 January 2010 the applicant submitted a request to the investigator to access his medical-examination reports compiled following the events of 30 November 2009. On 1 February 2010 the investigator considered that the above request had been submitted within the criminal case opened against the applicant. On the basis of that, the request was rejected.

30.  According to the Government, on 29 January 2010 the investigator of the Leninskyy district prosecutor’s office in Dnipropetrovsk refused to institute criminal proceedings against police officers for the applicant’s alleged ill-treatment because there were no constituent elements of an offence. The investigator stated in his decision that the police officers had forcedly stopped and handcuffed the applicant after he had attempted to flee. Relying on the information from the SIZO, the investigator furthermore stated that no signs of cigarette burns had been found on the applicant, and bruises on his wrists had been the result of having been handcuffed. The Government stated that the applicant had not challenged the above decision.

31.  The Government further submitted that on 27 November 2009 the applicant complained to the police of having been beaten up by unknown individuals. On the same day he was questioned by the investigator concerning the event in question. The same day the applicant withdrew his complaint and on 28 November 2009 the investigator refused to institute criminal proceedings into the above event for lack of constituent elements of an offence. They provided copies of the applicant’s applications to institute the pre-investigation inquiry into the above event and to discontinue the pre-investigation inquiry, and the relevant decision of the police authorities of 28 November 2009 refusing to institute criminal proceedings.

32.  In letters dated 9 February and 3 March 2010 the Dnipropetrovsk regional prosecutor’s office informed the applicant that his ill-treatment complaints had not been forwarded for consideration since the criminal case file had been transferred to the trial court, which would have to examine these complaints in the course of the trial.

33.  In February 2010 the applicant instituted proceedings challenging the reply of the prosecution authorities of 9 February 2010. On 1 March 2010 the Zhovtnevyi District Court of Dnipropetrovsk discontinued the above proceedings, holding, with reference to the prosecutor’s statement, that no procedural decision had been taken by the prosecution authorities following the applicant’s ill-treatment complaints.

34.  On 22 November 2013 the District Court rendered a ruling in addition to its principal sentence (see paragraph 18 above), in which the court stated that the events of 30 November 2009 (see paragraphs 23 and 24 above) could indicate that the applicant had been ill-treated. The court notified the Dnipropetrovsk regional public prosecutor of its ruling “with a view of taking relevant actions and avoiding similar events in the future”.

35.  On 20 February 2014 the Regional Court quashed the above ruling together with the principal sentence (see paragraph 18 above) and remitted the case to the trial court for fresh examination. In its decision the Regional Court instructed the trial court to carefully examine the applicant’s ill‑treatment complaints.

36.  The parties did not inform the Court whether the above instruction of the Regional Court had been implemented.

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37.  The applicant complained that he had been ill-treated by the police and that no effective investigation into his complaints had been carried out. 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.”Admissibility

38.  The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his ill-treatment complaints since he had failed to challenge the investigator’s decision of 29 January 2010 refusing to institute criminal proceedings against police officers for his alleged ill-treatment (see paragraph 30 above).

39.  The applicant argued that he had learned about the above decision only from the Government’s observations. He had not been given a copy and therefore he had not been able to challenge it. In his view, this decision had in any case been unlawful as it had been taken by a body lacking competence.

40.  The Court considers that the Government’s argument is closely linked to the substance of the applicant’s complaints under Article 3 of the Convention. It must therefore be joined to the merits.

41.  The Court further notes that the above complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.Merits

42.  The relevant general principles of the Court’s case-law concerning Article 3 of the Convention and the State’s obligations stemming from that provision are summarised in particular in El-Masri v. the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§ 182-85 and 195-98, ECHR 2012) and Bouyid v. Belgium ([GC] no. 23380/09, §§ 81-90 and 100‑01 ECHR 2015).Procedural aspect of Article 3 of the Convention

(a)   The parties’ submissions

43.  The applicant submitted that no investigation into his ill-treatment complaints had been carried out. The investigating authorities had failed to question the applicant, his father, and other witnesses, including the officers of the police office regarding his ill-treatment. He also stated that no forensic examination of his injuries had been carried out. He asserted that he had been unaware of the decision of 29 January 2010 since he had not been given a copy of it. He further stressed that had the above decision been taken, all the medical documents, which had been destroyed according to the Government, would have been attached to the above decision. Reference to the above decision would have been made in other material in the case file, for example in the decision of the Regional Court of 20 February 2014 (see paragraph 35 above).

44.  Lastly, the applicant submitted that his ill-treatment complaints had been examined in the course of his trial only. However, that examination had been limited to questioning the applicant, his father, and two witnesses without a full-scale investigation that would meet the requirements of Article 3 of the Convention.

45.  The Government submitted that the authorities had carried out an effective investigation into the applicant’s ill-treatment immediately after an event in question. In particular, they had immediately obtained statements from the police officers who had arrested the applicant on 30 November 2009. The above investigation had been discontinued on 29 January 2010 and had not been challenged by the applicant.

(b)   The Court’s assessment

46.  The Court will first examine the Government’s argument related to non-exhaustion of domestic remedies by the applicant (see paragraph 38 above). It notes in this connection that the Government did not comment on the applicant’s argument that he had been unaware of the investigator’s decision of 29 January 2010. Neither did they provide documentary proof that the above decision had been served on the applicant.

47.  It appears from the available material that the applicant submitted his ill-treatment complaints a number of times since 1 December 2009 (see paragraph 27 above). It also appears that between December 2009 and August 2011 the applicant asked the authorities a number of times to provide him with copies of the documents concerning his medical examination performed on his admission to the detention facilities in November-December 2009. The Government did not comment on the applicant’s assertion that the above requests had been rejected (see paragraph 29 above).

48.  Furthermore, the Government did not comment on the prosecutor’s statements given in the course of the proceedings challenging the reply of the prosecution authorities of 9 February 2010, that no procedural decision had been taken by the prosecution authorities upon the applicant’s ill‑treatment complaints (see paragraph 33 above).

49.  Next, no information about the above decision of 9 February 2010 was mentioned in the letters of the Dnipropetrovsk regional prosecutor’s office dated 9 February and 3 March 2010, informing the applicant that his ill-treatment complaints had not been forwarded for consideration since the criminal case file had been transferred to the trial court, which would have to examine these complaints in the course of the trial (see paragraph 32 above).

50.  Lastly, it appears that the above decision was not mentioned either in the additional ruling of the District Court of 22 November 2013 issued in relation to the events of 30 November 2009 (see paragraph 34 above), or in the ruling of the Regional Court of 20 February 2014 instructing the trial court to carefully examine the applicant’s ill-treatment complaints (see paragraph 35 above).

51.  In the light of the foregoing, the Court concludes that the applicant cannot be considered as having been aware of the decision of 29 January 2010. Therefore, it dismisses the Government’s argument concerning non‑exhaustion of domestic remedies.

52.  In the present case, the applicant had an arguable claim that he had been subjected to treatment prohibited by Article 3 of the Convention by the police. The authorities therefore had an obligation to investigate it, in accordance with the effectiveness standards established in the Court’s case‑law (see, amongst many other authorities, Bouyid, cited above, §§ 114‑23).

53.  The Court observes that the authorities’ reaction to the applicant’s ill-treatment complaints was contradictory. While at the domestic level the applicant was informed that his complaints would be examined in the course of the trial (see paragraph 32 above), in the proceedings before the Court the Government asserted that his complaints had indeed been examined by the investigator (see paragraph 45 above).

54.  Even if the above assertion of the Government was accepted, the Court notes that the applicant’s complaint was handled in the form of a pre‑investigation inquiry under the 1960 Code of Criminal Procedure. Within that procedure, the officer in charge of the pre-investigation inquiry could only take a limited number of steps and the victim had no formal status and could not effectively participate in the procedure (see, for example, Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).

55.  Within that pre-investigation inquiry no forensic medical examination to establish what injuries had been sustained by the applicant was carried out. The applicant, the witnesses and police officers indicated by him were not questioned regarding the alleged events. Furthermore, it appears that the investigator did not analyse the applicant’s alleged beating on 27 November 2009 (see paragraph 30 above).

56.  The Court has already condemned patterns of investigation similar to those in the present case in a number of other cases against Ukraine (see, for example, Drozd v. Ukraine, no. 12174/03, §§ 63‑71, 30 July 2009; Savitskyy, cited above, §§ 121-122; Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Zhyzitskyy v. Ukraine, no. 57980/11, §§ 49‑53, 19 February 2015). Moreover, in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012), the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill‑treatment complaints by criminal suspects had constituted a systemic problem within the meaning of Article 46 of the Convention.

57.  In view of the circumstances of the present case and its earlier case‑law, the Court concludes that no serious effort was made to investigate the allegations of ill-treatment made by the applicant.

58.  It follows that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the investigation into the applicant’s complaints concerning his ill-treatment by the police.Substantive aspect of Article 3 of the Convention

(a)   The parties’ submissions

59.  The applicant reconfirmed his complaint set out in the application form. He further submitted that his injuries had been documented at the temporary detention centre upon his admission there (see paragraph 25 above). The alleged ill-treatment had been administered to the applicant openly both inside the prosecution office and outside it. It continued after the applicant had been transferred to the police station later on. He added that the treatment he had sustained had amounted to torture by its nature.

60.  The Government submitted that they were unable to provide medical documentation regarding the applicant’s injuries he had allegedly sustained on 30 November 2009 in view of the relevant documents having been destroyed. They further maintained with reference to the investigator’s decision of 29 January 2010 (see paragraph 30 above), that no signs of cigarette burns had been found on the applicant upon his admission at the temporary detention centre, and the bruises on his wrists had been the result of his having been handcuffed. The Government next suggested that the applicant’s injuries could have originated from his having been beaten by unknown individuals on 27 November 2009 (see paragraph 31 above). In their view, the State could not be held responsible for injuries the applicant had sustained while outside the control of State agents.

(b)   The Court’s assessment

61.  The Courts reiterates that where events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El-Masri, cited above, § 152, and Bouyid, cited above, § 83).

62.  Turning to the circumstances of the present case, the Court notes that although the parties disagreed as to whether the applicant had had cigarette burns on the day of alleged events, the presence of other injuries mentioned in the report of the temporary detention centre issued on 22 December 2009 (see paragraph 25 above), namely a wound on the head, scratches on the head and neck, and bruises on his wrists, were not disputed. It was also undisputed that the applicant had received medical care from ambulance paramedics at the temporary detention centre on the day of the alleged events.

63.  While the Government submitted a substantial amount of documents dated November 2009 and later, they failed to present any medical evidence concerning the applicant’s state of health, explaining that those documents had been destroyed. The Court will therefore make its assessment on the basis of the documents available before it.

64.  As regards the event of 27 November 2009 referred to by the Government, the Court notes that no medical examination of the applicant had been carried out within the scope of the pre-investigation inquiry which would have allowed for confirmation of the nature and seriousness of the injuries allegedly sustained by him. In this connection, the Court is unable to analyse the Government’s version concerning the origin of the injuries sustained by the applicant.

65.  The Court further reiterates that the Government’s version has never been analysed by the domestic investigation (see paragraph 55 above).

66.  In the light of the foregoing and in the absence of credible explanation as to the origin of injuries sustained by the applicant (see paragraph 25 above), the Court cannot accept the Government’s assertion that the applicant’s injuries were the result of his alleged beating on 27 November 2009.

67.  On the contrary, the Court considers that the applicant’s version of events (see paragraphs 24 and 25 above) appears to be coherent and detailed, and supported with relevant documentary evidence, such as medical certificate from ITT and numerous complaints submitted by him at the domestic level.

68.  It remains to be established whether the applicant is justified in claiming that the treatment of which he complained was in breach of Article 3 of the Convention.

69.  In this regard, the Court reiterates that, in respect of a person who is deprived of his or her liberty, or, more generally, confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, cited above, §§ 88 and 101).

70.  In the light of its findings above, the Court concludes that physical force was used against the applicant which had not been made necessary by his own conduct. In these circumstances, the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to inhuman and degrading within the meaning of Article 3 of the Convention.

71.  There has therefore been a violation of the substantive limb of Article 3 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

72.  The applicant complained under Article 5 § 1 (c) of the Convention that the trial court had extended his detention on 26 February 2010 without indicating either any reason for that detention or any time-limit. The applicant also complained, under Article 5 § 4 of the Convention, that the hearing at the District Court on 28 January 2010 aimed at examining the extension of his detention had been held in his absence and in the absence of his defence lawyer, and that on 4 February 2010 the Regional Court had returned without examination his appeal against the court decision of 28 January 2010. The relevant provisions of Article 5 §§ 1 (c) and 4 of the Convention read as follows:

“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;

...

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 ...”Admissibility

73.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.MeritsArticle 5 § 1 of the Convention

74.  The applicant submitted that his detention following the decision of the District Court of 26 February 2010 (see paragraph 13 above) had been unreasoned and unlawful.

75.  The Government disagreed and submitted that the applicant’s detention had been lawful and duly justified.

76.  The Court has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention (see Kondratyev v. Ukraine, no. 5203/09, §§ 109-112, 15 December 2011, and Gerashchenko v. Ukraine, no. 20602/05, §§ 93-94, 7 November 2013).

77.  The Court does not see any reason to depart from those findings in the present case. Accordingly, there has been a violation of Article 5 § 1 of the Convention.Article 5 § 4 of the Convention

78.  The applicant reiterated his initial submissions set out in the application forms (see paragraph 72 above).

79.  The Government contested the applicant’s grievances and submitted that they had had no information whether the applicant or his lawyer had been absent from the court hearing on 28 January 2010. They further submitted that overall the actions of the domestic court dealing with the applicant’s case had been lawful.

80.  The applicable general principles emerging from the Court’s case‑law are set out in Molodorych v. Ukraine (no. 2161/02, §§ 97-101, 28 October 2010).

(a)   Hearing on 28 January 2010

81.  The decision of the District Court of 28 January 2010 indicates that a hearing on extension of the applicant’s detention on remand was held in the absence of the applicant and his defence lawyer. Bearing in mind that no evidence to the contrary was presented before the Court, it does not see any reason to conclude otherwise.

82.  Therefore the Court finds that the above hearing had been held in the absence of the applicant or his defence lawyer, who had thus not been given an opportunity to put forward any arguments concerning the applicant’s detention (contrast Malkhasyan v. Armenia, no. 6729/07, § 83, 26 June 2012).

83.  Since the applicant was unable to present any arguments in the proceedings before the District Court, either in writing or orally, the Court considers that he could not effectively exercise his rights under Article 5 § 4 of the Convention in that context. Accordingly, there has been a violation of that provision.

(b)   Review of the lawfulness of the applicant’s detention during the trial

84.  On 4 February 2010 the Regional Court returned without examination the applicant’s appeal against the District Court’s decision of 28 January 2010 extending his detention on remand (see paragraph 12 above). The Court notes that the ground for not examining the applicant’s appeal was the fact that the criminal case was being heard by the trial court (ibid.).

85.  The Court has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011). It does not see any reason to depart from its findings in the present case. Accordingly, there has been a violation of that provision too.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

86.  The applicant further complained about the length of the criminal proceedings in his case. Article 6 § 1 of the Convention, which is the relevant provision here, 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 ...”Admissibility

87.  The Court notes that the above 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.Merits

88.  The Government submitted that the case had been complex. They further stated that the proceedings had been delayed owing to the conduct of the applicant’s defence lawyers, who had lodged numerous appeals and requests for the replacement of the trial-court judges. Overall, in their view, the court hearings had been scheduled with reasonable intervals and there had been no delays which could be attributed to the State.

89.  In the present case, the proceedings started on 25 September 2006, when a criminal investigation for illegal arms possession was instituted in respect of the applicant (see paragraph 5 above), and were terminated on 11 December 2018 (see paragraph 20 above). They thus lasted twelve years and more than two months over two levels of jurisdiction.

90.  The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities dealing with the case (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II; and Merit v. Ukraine, no. 66561/01, § 72, 30 March 2004).

91.  In the present case the Court observes that the hearings were often scheduled with intervals of from three to four weeks and almost half of them were adjourned owing to the failure of the prosecution, witnesses or experts to appear before the court. While the domestic courts took some measures to discipline the absentees, those measures did not prove to be effective, as the persons concerned anyway did not appear before the court at other times (see paragraph 21 above).

92.  The Court accepts that the applicant’s conduct could have been the reason for the postponement of the court hearing on several occasions, however those delays were not in and of themselves enough so as to affect the whole proceedings and delay them significantly.

93.  Furthermore, the Court cannot overlook the numerous adjournments in the hearings owing to the trial court’s inability to hold them for various reasons (ibid.). This led to the postponement of the hearings for almost one and a half year in total. In that connection the Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, Silin v. Ukraine, no. 23926/02, § 34, 13 July 2006).

94.  Having examined all the material submitted to it and in the light of 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.

95.  There has accordingly been a violation of Article 6 § 1 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

96.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

97.  The applicant claimed 10,133,500 euros (EUR) in respect of pecuniary damage which include salary and income losses, and expenses for housing rent. He also claimed EUR 50,000 in respect of non-pecuniary damage.

98.  The Government considered those claims excessive and unsubstantiated.

99.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 11,700 in respect of non‑pecuniary damage.Costs and expenses

100.  The applicant also claimed EUR 21,400 for the costs and expenses incurred before the domestic courts and EUR 850 for those incurred before the Court. He further claimed EUR 60 for postal expenses.

101.  The Government considered the above claims unsubstantiated.

102.  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. Regard being had to the documents in its possession and the fact that the applicant’s representative intervened in the proceedings at the communication stage only, the Court awards the applicant the aggregate sum of EUR 1,000, to cover all the applicant’s costs and expenses, plus any tax that may be chargeable to the applicant.Default interest

103.  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,Joins to the merits the Government’s objection as to the admissibility of the applicant’s complaint of ill-treatment by the police and rejects this objection after an examination of the merits;Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention in respect of the treatment the applicant was subjected to by the police;Holds that there has been a violation of Article 3 of the Convention in that the authorities failed to carry out an effective investigation into the applicant’s complaint of ill-treatment by the police;Holds that there has been a violation of Article 5 § 1 of the Convention in respect of his detention following the decision of the Leninskyy District Court of Dnipropetrovsk of 26 February 2010;Holds that there has been a violation of Article 5 § 4 of the Convention both in respect of the decision of the Leninskyy District Court of Dnipropetrovsk of 28 January 2010, and the decision of the Dnipropetrovsk Regional Court of Appeal of 4 February 2010;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of unreasonable length of the criminal proceedings against the applicant;Holds

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

(i)  EUR 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško André Potocki
Deputy RegistrarPresident

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