CASE OF PLACHKOV v. UKRAINE

FIFTH SECTION

CASE OF PLACHKOV v. UKRAINE

(Application no. 76250/13)

JUDGMENT
 

STRASBOURG

15 April 2021

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

In the case of Plachkov v. Ukraine,

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

Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application 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 Oleg Volodymyrovych Plachkov (“the applicant”), on 25 November 2013;

the decision to give notice of the complaints Articles 3, 5 and 13 of the Convention to the Ukrainian Government (“the Government”) and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 18 March 2021,

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

INTRODUCTION

1.  The case concerns, under Articles 3 and 13 of the Convention, the applicant’s alleged ill-treatment in detention, his conditions of detention and the lack of medical assistance in detention. It also concerns his allegations, under Article 5 §§ 1, 3 and 4, that the decision to keep him in detention on 10 June 2013 was unlawful because the domestic court took this decision of its own motion in the absence of an application from the prosecutor, providing no grounds for it and without setting a time-limit; that there were not sufficient reasons for keeping him in pre-trial detention; that the bail set as an alternative to detention was excessive and that his applications for release were not duly examined.

THE FACTS

2.  The applicant was born in 1968 and lives in Kamyanske in Dnipropetrovsk Region. The applicant was represented by Mr O.A. Ignatov, a lawyer practising in Dnipro.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Criminal proceedings against the applicant and his pre-trial detention

5.  At the relevant time the applicant was the chief of the district police investigative unit in Dniprodzerzhynsk.

6.  On 2 and 5 November 2012 criminal proceedings were instituted against a certain G., who was the applicant’s subordinate, on account of extorting bribes from local businessmen.

7.  On 2 November 2012, in the applicant’s office, the police seized an envelope with money in it which G. had allegedly given to the applicant as a bribe earlier that day. On the same date, following the police search in the applicant’s apartment, conducted in the context of criminal proceedings against G., 150,000 United States dollars in cash, a gun, bullets, as well as material from a criminal case file concerning drug dealing, which should have been sent to a court by the applicant’s unit in January 2005, were seized.

8.  On 12 November 2012 the applicant was arrested and was charged with aggravated abuse of office, an offence under Article 364 § 3 of the Criminal Code (see paragraph 57 below) for his failure to refer the criminal case found in his home to the court.

9.  The investigator applied to have the applicant remanded in custody. He argued that the applicant was suspected of having inappropriately retained from January 2005 to November 2012 in his home a criminal case file concerning drug dealing, an action which had allowed the defendant in that case to avoid punishment. The investigator argued that the applicant should be placed in detention because he could obstruct the course of justice, abscond, and because he was suspected of an offence punishable by more than three years’ imprisonment.

10.  On 14 November 2012 the Dnipropetrovsk Zhovtnevy District Court (“the District Court”) remanded the applicant in custody on the grounds that he was suspected of a serious crime punishable by more than five years’ imprisonment and, because of that, if at liberty, he might abscond to avoid investigation and trial, impede the investigation or reoffend.

11.  On 20 December 2012 the criminal proceedings against the applicant and G. were merged into a single set of proceedings.

12.  On 28 December 2012 the District Court, allowed the investigator’s application, extended the applicant’s detention until 2 March 2013 on the grounds of the necessity to complete the investigation, the seriousness of the charges and the risk that the applicant could abscond, influence witnesses or use his connections in the police to obstruct the investigation. It relied on some reports of police officers and witnesses in that connection.

In particular, the court referred to the investigator’s application for extension of detention according to which the applicant, as a former head of town’s police investigative unit, had a wide network of active police officers loyal to him and those officers could use their power to influence witnesses, victims and experts. According to the application, this was evidenced by the reports of the police internal-security unit as well as the results of the interviews with victims and other witnesses.

Moreover, the applicant had interfered in the investigation in the course of the search on 2 November 2012 (see paragraph 7 above) by refusing to participate in it and to give up the unregistered weapons and cash which had constituted proceeds of crime. There were considerable discrepancies in the statements of the applicant and his subordinate G. as to the origin of the funds found in the applicant’s office and, if at liberty, the applicant could influence G. and other witnesses to avoid prosecution. Lastly, covert measures were being conducted to verify if other police officers, who could have acted in conspiracy with the applicant, were implicated in criminal activities. The applicant’s release would allow him to influence those former colleagues and other witnesses, a number of whom lived in Dniprodzerzhinsk, where the applicant used to head police investigations.

The court considered that the risks alleged by the prosecutor had been proven in the course of the hearing by such evidence as internal police security reports, witness statements and the fact that G., whose case was linked to that of the applicant, was accused of eighteen counts of bribery.

In summary, the court considered that the above-mentioned risks could not be avoided unless the applicant was detained. At the same time, the court noted that, pursuant to Article 183 § 3 of the Code of Criminal Procedure it was mandatory to set bail (see paragraph 61 below). Considering in particular the seriousness of the offence of which the applicant was accused, the court considered it necessary to set bail in excess of the amount set in Article 182 § 5 of the Code of Criminal Procedure (see paragraph 60 below). Accordingly, the court set bail at 1,400,000 Ukrainian hryvnias (UAH), at the time equivalent to about 129,800 euros (EUR), as an alternative measure.

13.  On 9 January 2013 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) rejected the applicant’s appeal against the above ruling, having supported the reasoning of the District Court and having noted, inter alia, that the amount of bail was justified by the need to ensure that the applicant would comply with his procedural obligations.

14.  On 18 January 2013 an investigation was started into the suspected unlawful possession of firearms and ammunition by the applicant and on 22 February 2013 into suspected breach of traffic rules by the applicant in 2007, which resulted in the death of a victim. Those new investigations were joined to the proceedings concerning the other charges against the applicant and G.

15.  On 28 February 2013 the District Court extended the applicant’s detention until 2 April 2013 with the same amount of bail set as an alternative preventive measure. According to the court, the case file suggested that the risks mentioned in the earlier detention orders had not diminished. In that connection the court relied on the same arguments and evidence as in its previous pre-trial detention decision of December 2012 (see paragraph 12 above). Moreover, the court noted that new risks appeared in view of the additional criminal proceedings instituted against the applicant. In that connection the court noted the investigator’s argument that the applicant had already used his influence on other police officers to falsify two criminal investigations launched into the traffic incident in 2007 which he had been charged with causing. This illustrated the risk that, if at liberty, the applicant might influence police officers, witnesses and victims to obstruct the course of justice in the investigation of that incident. Lastly, the court further referred to the need to perform a number of investigative actions to complete the investigation.

16.  On 28 March 2013 the District Court extended the applicant’s detention until 2 May 2013 upon the investigator’s request. It repeated its previous reasoning set out in the decisions of December 2012 and February 2013 (see paragraphs 12 and 15 above), emphasising that the applicant had strong connections in different State bodies and might obstruct the criminal proceedings and influence witnesses and experts. The judge noted that the applicant had failed to provide counter-arguments proving that the above risk had not been valid. In response to the applicant’s submissions before the court that the previously set bail had been excessive the court reduced it to UAH 900,395 (about EUR 85,130 at the time).

17.  On 26 April 2013 the pre-trial investigation was completed and the case against the applicant and G. was referred to a district court in Dniprodzerzhinsk where the applicant used to work as the chief of the police investigative unit (“the Dniprodzerzhinsk Court”).

18.  On 30 April 2013 the Dniprodzerzhinsk Court held a preparatory hearing. During the hearing, the prosecutor lodged an application for a change of the territorial jurisdiction of the case in order to avoid doubts as to the impartiality of the trial court. He also requested that the court extend the applicant’s detention. Having heard argument from the parties to the case, the court allowed both of the prosecutor’s requests and rejected the applicant’s objections in that regard. The court decided that the criminal case was to be sent to the Court of Appeal to decide on the issue of territorial jurisdiction. In doing so, it noted, inter alia, that the applicant was a high-ranking police official who had a work relationship with the courts in Dniprodzerzhinsk which might create a risk of lack of impartiality on the part of those courts. The court also ruled that the applicant should remain in detention until 30 June 2013. By way of reasoning the court stated that it had taken into account all factual circumstances, which by the date of the hearing had remained unchanged, and that no other circumstances which would enable the court to change or cancel the preventive measure, had been brought to the court’s attention.

19.  On 29 May 2013 the Court of Appeal transferred the case to the District Court to avoid any possible risks linked to impartiality of the trial court.

20.  On 10 June 2013 the District Court held a preparatory hearing under Article 315 of the Code of Criminal Procedure (see paragraph 62 below). It heard the applicant’s and the prosecutor’s submissions as to whether the applicant should be committed for trial. At the close of the preparatory hearing the trial court issued a ruling committing the applicant for trial. In the same ruling, the District Court ordered that the applicant remain in custody, without giving any reasons or setting a time-limit for that detention. Neither the applicant nor the prosecutor made any applications concerning the preventive measure previously imposed on the applicant and the trial court did not ask for their opinion on that matter. No appeal lay against that ruling.

21.  On 17 July 2013, during the trial in his criminal case, the applicant applied to the District Court to have his detention replaced by any non-custodial preventive measure and to declare that his detention after 30 June 2013 had been unlawful. The court refused to change the preventive measure and extended the applicant’s detention until 15 September 2013. It noted in that connection that all risks mentioned in the previous decisions concerning the preventive measure had not diminished: the applicant had been charged with serious crimes and, in the event of his being released, might influence witnesses and other participants in the proceedings or otherwise obstruct the criminal proceedings, given that the trial had not started yet. It noted, without going into details, that “a less strict preventive measure would not be able to eliminate the above-mentioned risks”.

22.  On 15 August 2013 the applicant lodged an application for release.

23.  On 3 September 2013, during a hearing in his criminal case, the applicant lodged another application for release. The prosecutor, in turn, applied to the District Court to extend the applicant’s detention for two more months. The District Court dismissed the applicant’s request and extended his detention until 3 November 2013. It repeated its previous reasoning.

24.  On 25 October 2013, following an application by the prosecutor, the District Court extended the applicant’s detention until 24 December 2013 on the same grounds as those given on previous occasions.

25.  On 20 December 2013, during a hearing in the applicant’s case, the prosecutor applied to have the District Court extend the applicant’s pre-trial detention. The applicant applied to be released. Having heard argument from the parties, the District Court dismissed the applicant’s application and extended his detention until 23 February 2014, repeating the reasoning given in its previous decisions.

26.  On 19 February, 8 April, 27 May, 24 July, 19 September and 12 November 2014 the District Court, either following an application by the prosecutor or acting on its own motion, extended the applicant’s detention on the same grounds as before, having rejected as unsubstantiated the applicant’s arguments that no facts had been provided to the court which would prove the existence of the relevant risks referred to by the prosecutor.

27.  On 15 March, 29 April, 7 and 13 October 2014 applications on the part of the applicant for a change of the preventive measure were dismissed by the District Court on the ground that the risks referred to in its previous ruling were still relevant and that the application of a less severe measure in such circumstances was not possible.The applicant’s conviction

28.  On 22 December 2014 the District Court convicted the applicant of unlawful possession of firearms and a breach of traffic rules which had led to a death, and acquitted him on the remaining charges.

29.  On 24 June 2015 and 20 July 2016 the Court of Appeal and the High Civil and Criminal Court of Ukraine respectively upheld that judgment.Conditions of detention

30.  From 16 November 2012 to 10 August 2015, the applicant was detained in the Dnipropetrovsk pre-trial detention facility (“the SIZO”). On the latter date the applicant was transferred to a different facility to serve his prison sentence.

31.  In his initial submissions to the Court the applicant alleged that from November 2012 to February 2014 he had been detained with two other people in a cell measuring 7.2 square metres. After February 2014 and at least until March 2015 (when he had lodged his complaint to the Court) he had shared that cell with one cellmate.

In his observations in response to those submitted by the Government the applicant described his cells as follows:

Period

Cell area, in sq. m

Number of prisoners held with the applicant

14 November 2012 to 20 May 2013

7.3

2

May to 3 October 2013

6.5

2

3 October 2013 to 9 August 2015

6.5

1 permanently and others occasionally in transit during inter-prison transfers

The applicant submitted that the electric light had always been on in the cell, even at night; the window had had grates on it, scarcely letting in daylight or fresh air; there had not been any artificial ventilation, which had made the applicant suffer during the summer; the toilet had been separated from the living quarters with a simple stall partition with no doors; it smelled of excrement. The food had been meagre and of very poor quality. The detainees had been able to wash and shave only once a week in a special bathing facility. The applicant had been allowed to walk outside his cell for only one hour per day.

32.  The Government submitted that the applicant had been held in cells no. 614 measuring 7.3 sq. m and no. 626 measuring 6.5 sq. m and, in both cases, “designed for two people” (розрахована на дві особи). They submitted a letter from the prison authorities indicating that cleaning, catering and bathing arrangements had been appropriate and had complied with the relevant regulations. The letter also indicated that a number of cell blocks at the prison where the applicant had been held had lacked artificial ventilation. The prison had requested funding for the necessary refurbishment. In the meantime, ventilation was being ensured using special ventilation openings and during the prisoners’ daily hour of exercise.Attack on the applicant in the detention facility and its aftermath

33.  On 2 October 2014, when returned to the SIZO from a court hearing, the applicant was placed in the same cell as twenty previously convicted offenders, contrary to the national legal requirements that (former) police officers be held separately from the general prison population (see paragraph 65 below). Following that, he was beaten by some of his cellmates. After the beating, he was placed in a separate cell and left without any medical assistance for several hours.

34.  In the evening of the same day the applicant was visited by the SIZO medical practitioner. The latter recorded the following injuries: haemotomata on the eye sockets, cheek and lip and a haemorrhage in the right eye. The officer also noted that the applicant complained of pain in the liver and stomach area, dizziness, nausea and weakness.

35.  According to the applicant, the medical officer limited his medical assistance to advice to the applicant to use cold water from the tap to help his eye. The applicant’s repeated requests for the prison staff to call an ambulance were ignored.

36.  On 10 October 2014 the applicant was examined by the prison’s medical officer. The officer noted a haematoma on the applicant’s chest, and the applicant’s complaints of chest pain. He also noted periorbital haemotomata, a scleral haemorrhage, and the applicant’s complaint of deterioration in his eyesight. The officer prescribed ointments for the haemotomata and anti-inflammatory medication in case of pain. The officer noted that the applicant had refused to be seen by an ophthalmologist or a surgeon.

37.  On 13 October 2014 the applicant complained again to the trial court that no medical assistance had been provided to him for his injuries and he applied to be released. The District Court rejected the applicant’s request, stating that the applicant had provided no medical documents related to his state of health. The court rejected the applicant’s request for a medical examination.Investigation into the assault

38.  The police instituted a criminal investigation into the assault on the applicant on 3 October 2014.

39.  The applicant was interviewed on the same day and stated that he had been assaulted by an inmate and that he suspected that he had been intentionally placed in a cell with inmates from the general prison population to punish him for his complaints that he had been detained illegally.

40.  On 10 October 2014 the prison governor approved the report summarising the results of the internal investigation concerning the incident. The report concluded that at 5 p.m. on 2 October 2014 the applicant had been brought back from a court hearing and a duty officer had failed to check the list of inmates to be separated from the general prison population and to ask the applicant whether he had needed to be separated and had erroneously placed the applicant with the general population. At 6.20 p.m. the officer found the applicant in the cell with head injuries. The applicant had explained that in the cell somebody had announced that he had been a former police officer after which they had started hitting him. He did not know the prisoners who had identified and hit him. Afterwards the applicant had been placed in a separate cell and visited by the medical officer who had noted his injuries and had provided appropriate medical assistance (надано необхідну медичну допомогу). The prison governor stated that it was up to the police to establish the identity of prisoners who had injured the applicant. The governor decided to submit the report on the omissions committed by the duty officer and three other officers (their omissions were not specifically identified) to the prison’s personnel board. A copy of the report was to be joined to the applicant’s file.

The part of the report summarising the course of the internal investigation contains a summary of the police officers’ statements concerning the incident: one of the prison officers explained that he had directed the applicant to the correct cell, separated from the general population, but the applicant had instead entered the wrong cell on his own initiative. Another officer explained that the applicant had been placed in the wrong cell because he had failed to identify himself as a former police officer.

41.  On 19 December 2014 the police investigator discontinued the proceedings for lack of constituent elements of the criminal offence of intentional infliction of minor bodily injuries in the incident.

42.  On 1 September 2016 the applicant was notified of the decision of 19 December 2014. He appealed.

43.  On 23 September 2016 the Dnipro Krasnohvardiysky District Court overturned the decision of 19 December 2014 to discontinue the proceedings. It held that the investigator had failed to interview the applicant, the prison staff on duty at the time of the incident or other witnesses.

44.  On 20 February 2017 the Chechelivske district police decided to discontinue the proceedings for lack of constituent elements of the offence of intentional infliction of minor bodily injuries, finding that no witnesses, including the prison staff on duty at the relevant time, could be identified. The decision was based on an internal report from police detectives stating that, despite search measures undertaken, because of the considerable passage of time since the events, no witnesses could be found.

45.  On 20 August 2017 the applicant was informed of that decision.

46.  On 6 September 2017 the prosecutor’s office annulled the decision to discontinue the proceedings of 20 February 2017. The prosecutor noted that the investigator had failed to take steps to identify witnesses and collect other evidence in the case.

47.  On 27 December 2017 the proceedings were discontinued on the same grounds as on 20 February 2017 (see paragraph 44 above).

48.  On 25 May 2018 the prosecutor’s office annulled the decision of 27 December 2017. The prosecutors also issued instructions to the investigator as to additional investigative steps to take. In particular, the investigator had to request information concerning the prison’s internal investigation into the incident, his prison medical file, examine whether the prison had called an ambulance for the applicant, question prison staff concerning the incident and the prison medical officers concerning his injuries and the medical assistance provided to him. It was also necessary to question prisoners who had been in the cell with the applicant.

49.  In July 2018 the investigator requested the medical documentation indicated in the prosecutor’s office instructions from the prison and the regional ambulance dispatching service.

50.  In July 2019 the prison governor sent the investigator the internal‑investigation report (see paragraph 40 above).

51.  Also in July 2019 the investigator again requested the applicant’s medical documentation, the list of staff on duty and the list of his cellmates at the time of incident from the prison governor.

52.  In August 2019 the prison governor responded that the list of staff on duty had been destroyed in April 2018 and that no records of cell occupancy were kept.

53.  On 7 August 2019 the prosecutor’s office repeated its instruction to the investigator.

54.  In August 2019 the investigator recognised the applicant as an aggrieved party in the proceedings and ordered a forensic medical examination to determine the origin of the applicant’s injuries.

55.  The case contains no information as to the further progress in the proceedings.

RELEVANT LEGAL FRAMEWORK AND PRACTICEConstitution of Ukraine 1996

56.  Article 29, which is relevant to the case, reads as follows:

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law.

...”Criminal Code 2003

57.  Article 12 of the Criminal Code classifies offences based on the maximum punishment which they carry under the Code as offences of minor severity, medium severity, serious and particularly serious offences. “Serious” offences are defined as those punishable by five to ten years’ imprisonment. Article 364 § 3 of the Code makes aggravated abuse of office for material gain or other personal interest committed by a law-enforcement officer punishable by five to ten years’ imprisonment combined with confiscation of all personal assets. It is, therefore, a “serious” offence.Code of Criminal Procedure 2012Detention on remand and bail

58.  Article 176 § 1 provides for the following preventive measures:

(i)  a personal undertaking of the defendant;

(ii)  a personal warranty of a third party;

(iii)  bail;

(iv)  house arrest; and

(v)  pre-trial detention.

Preventive measures are applied by the judge at the request of the investigator, following an application by the prosecutor, or following an application by the investigator approved by the prosecutor (Article 176 § 4).

The court must reject an application for a preventive measure if the investigator or the prosecutor has not proven that there are sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe is pre-trial detention (Article 176 § 3).

59.  Article 177 § 1 provides that the purpose of preventive measures is to ensure compliance with procedural obligations and prevent the risk of the suspect or accused:

(i)  absconding from the pre-trial investigation authorities and/or the court;

(ii)  destroying, concealing or spoiling any of the items or documents that are of essential importance for establishing the circumstances of the criminal offence;

(iii)  exerting unlawful influence on the victim, witnesses, other suspects, the accused, experts ...;

(iv)  obstructing the criminal proceedings in any other way;

(v)  committing another criminal offence or continuing the criminal offence of which he or she is suspected or accused.

60.  Article 182 § 4 requires the court, in setting bail, to take into account the circumstances of the offence to which the charge pertains, the financial and family situation of the defendant, other information concerning her or his person (character) and the risks bail is designed to prevent (absconding and others, see Article 177 in paragraph 59 above). The amount of bail must guarantee the defendant’s compliance with his procedural obligations and not be patently excessive (завідомо непомірним) for the defendant.

Article 182 § 5 sets ranges of bail which must be set for offences of a certain category of seriousness (see paragraph 57 above). The ranges are set in a certain number of minimum wages. For “serious” offences, including the offence of aggravated abuse of office with which the applicant was charged, bail must be from twenty to eighty minimum wages. At the relevant time (see paragraph 12 above) the latter amount was the equivalent of 8,480 euros.

However, § 5 of Article 182 also provides that in “exceptional cases” (у виключних випадках) the judge can set a higher bail for a defendant accused of a “serious” offence, where the judge finds that ordering bail within the range set by law could not ensure compliance of a defendant with his or her procedural obligations.

61.  Article 183 § 1 defines pre-trial detention as an “exceptional” preventive measure and provides that it can only be applied where the prosecutor has proven that no less restrictive preventive measure would be capable of preventing the risks set out in Article 177 of the Code (see paragraph 59 above).

Article 183 § 3 requires the courts, in all cases where pre-trial detention is imposed, to also set bail as an alternative to detention.

However, notwithstanding the obligation to set bail, § 4 allows the court not to set bail in cases concerning violent crimes and in cases where the defendant has failed to comply with a previously imposed non-custodial preventive measure.

62.  Under Article 315 of the Code, during the preparatory court hearing the court shall be entitled, at the request of the parties, to impose, alter or revoke preventive measures imposed on the defendant. The last sentence of § 3 of the Article provided that, in the absence of such a request from the parties, the preventive measure imposed at the pre-trial investigation stage “shall be deemed to be extended”.

On 23 November 2017 the Constitutional Court declared that last “deemed to be extended” sentence unconstitutional on the grounds that it contradicted the constitutional provision providing that detention must be based on a reasoned court decision (see paragraph 56 above). The Constitutional Court relied, in particular, on the Court’s judgment in Ignatov v. Ukraine (no. 40583/15, § 36, 15 December 2016), where the Court had held that keeping the defendant in detention at the trial stage based on a mere extension of detention imposed at the pre-trial stage and without giving reasons for such a decision had left the defendant in a state of uncertainty as to the grounds for his detention and had been incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1.

The unconstitutional provision lost all force from 23 November 2017.Use of pre-trial statements of witnesses in evidence

63.  Article 95 of the Code provides that the trial court can base its conclusions only on statements made directly in the course of the trial or obtained in accordance with the procedure established by Article 225 of Code. The court cannot base its decisions on statements made to the investigator or prosecutor.

64.  Article 225 provides as follows:

“1. In exceptional cases, where it is required to obtain statements from a witness or a victim during the pre-trial investigation, if there is a risk to [his or her] life or health, or if [he or she] is seriously ill, or if there are other circumstances likely to render impossible the questioning of that witness/victim in court and thus likely to affect the completeness and credibility of [his or her] statements, a party to the criminal proceedings may apply to the investigating judge to question that witness/victim... In such a case the questioning of the witness/victim shall take place during a court hearing on the premises of the court or at the location of the ill witness/victim in the presence of the parties to the criminal proceedings and in accordance with the rules on questioning applicable to court hearings. ...”Pre-Trial Detention Act 1993

65.  Section 8 of the Act requires that former law enforcement officers be kept separately from other prisoners.

THE LAWSCOPE OF THE CASE

66.  In his reply to the Government’s observations, the applicant submitted a large number of new complaints related to the criminal proceedings instituted against him. The Court considers that these complaints cannot be considered as an elaboration of the applicant’s complaints on which the Government have commented (see, for example, Yushchenko and Others v. Ukraine, nos. 73990/01 and 3 others, § 53, 15 July 2010). The Court considers, therefore, that it is not appropriate at this time to take up these matters in the context of the present case.ALLEGED VIOLATIONS OF ARTICLE 3 AND 13 OF THE CONVENTION

67.  Relying on Article 3 of the Convention the applicant complained of his ill-treatment in detention on 2 October 2014 and the lack of an effective investigation in that connection, as well as of his conditions of detention. Under Articles 3 and 13 of the Convention, the applicant complained that he had not been provided with medical assistance for the injuries he had sustained on 2 October 2014 and that he had had no effective remedies at his disposal in that connection.

68.  Articles 3 and 13 of the Convention read:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”Admissibility

69.  The Government submitted that an internal investigation found that SIZO officials had been negligent in placing the applicant in the general prison population (see paragraph 40 above). He accordingly could claim damages based on this negligence under the Civil Code. They provided an example of a first-instance court’s decision from June 2019 in which a plaintiff had been awarded damages from the State treasury for omissions of a State Bailiff in recovering a debt owed to the plaintiff under a final court judgment.

70.  The applicant responded that he had not been placed in the wrong cell due to negligence; he believed that the prison officers had colluded with the inmates to put pressure on him and make him more compliant. This required a criminal investigation. The applicant was entitled and intended to bring his civil claim for damages within the framework of criminal proceedings.

71.  The Court notes the applicant’s allegation that he was placed with the general prison population not owing to mere negligence but intentionally, as a way of punishing and putting pressure on him. It does not appear that that allegation was ever investigated and disproven, especially in the light of the very serious flaws which characterised the investigation into the incident (see paragraph 85 below). It is well-established in the Court’s case‑law that arguable claims of intentional infliction of treatment contrary to Article 3 require a criminal investigation. In any event, even if the Court were to accept that a civil remedy could be effective for at least some aspects of the applicant’s claim, there is no indication that he was ever informed of the results of the internal investigation on which the Government relied. The text of the report produced as the result of the investigation was not served on him. Even the police, despite the investigation they had conducted, were unaware of the existence and content of that report as late as more than two years after it had been produced (see paragraphs 40 and 44 above).

72.  Accordingly, the Court finds that the applicant was not required to use the remedy suggested by the Government and that the Government’s objection in that connection must be rejected.

73.  The Court further notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsAssault on the applicant in the detention facility

(a)   The parties’ submissions

(i)      The applicant

74.  The applicant alleged that the prison guards had intentionally placed him in a cell with other prisoners, in order to punish him for his active defence of his rights.

75.  As a result of the assault he had suffered multiple facial bruises, lost partial sight in his right eye for a time, suffered broken ribs and had felt dizzy. However, despite his request for an ambulance to be called, that had not been done and he had been left without medical attention for four hours at which point he had been examined by a prison medical officer. He, however, had refused to call an ambulance, order further tests in connection with the concussion symptoms the applicant had been suffering or identify any bone fractures or possible damage to his internal organs.

76.  There had been a number of flaws in the investigation into the incident: (i) the video recording of the incident had not been secured, (ii) potential witnesses had not been interviewed, (iii) no attempt had been made to investigate the nature and origin of the applicant’s injuries, (iv) the decision to discontinue the proceedings had been made on 19 December 2014 but not notified to the applicant until 1 September 2016 (see paragraphs 41 and 43 above); (v) nothing had been done to comply with the court decision annulling the initial discontinuation decision and a similar decision had been taken again.

(ii)     The Government

77.  The Government, having objected to the admissibility of the applicant’s complaint concerning the authorities’ failure to ensure his safety in detention, did not make specific submissions on the merits of that aspect of the applicant’s complaint.

78.  Concerning the medical assistance, the Government submitted that most of the prison medical documentation concerning the applicant had been destroyed following the expiration of the five-year time-limit established for storage of such documents.

79.  Concerning the investigation, the Government submitted that the scope of positive obligations under Article 3 should differ depending on whether the treatment in question had been inflicted by a State agent or a private party. The authorities had immediately entered information concerning the incident with the applicant into the Register of Pre-Trial Investigations. As of the day of submission of the Government’s observations the investigation was still pending. Therefore the applicant’s allegations had been investigated thoroughly.

(b)   The Court’s assessment

(i)      Compliance with the obligation to ensure the applicant’s safety

80.  The Court reiterates that Article 3 of the Convention imposes an obligation on the Contracting States not only to refrain from causing ill‑treatment, but also to take the necessary preventive measures to preserve the physical safety and well-being of persons deprived of their liberty (see, for example, Premininy v. Russia, no. 44973/04, § 73, 10 February 2011, and Gjini v. Serbia, no. 1128/16, §§ 72-80, 15 January 2019).

81.  Turning to the circumstances of the present case the Court notes that it has not been disputed that the applicant was assaulted by a cellmate and suffered injuries shortly after being placed in a cell with members of the general prison population on 2 October 2014 (see paragraph 33 above). In view of the extent of the applicant’s injuries, there is no doubt that the applicant suffered ill-treatment which fell within the ambit of Article 3 of the Convention.

82.  The Court has already been confronted with a similar situation in Sizarev v. Ukraine (no. 17116/04, §§ 114-16, 17 January 2013) and sees no reason to reach a different conclusion in the present case. The Ukrainian legislation on pre-trial detention set out certain requirements aimed at preserving the safety of detainees: in particular, former law-enforcement officers such as the applicant were to be isolated from other detainees (see paragraph 65 above). By failing to comply with that requirement, the authorities failed to ensure the applicant’s safety and were therefore responsible for his ill-treatment by his cellmates.

83.  Accordingly, there has been a violation of Article 3 of the Convention on account of the authorities’ failure to ensure the applicant’s safety in the detention facility.

(ii)     Investigation

84.  Article 3 requires authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals; that investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. Such an investigation should be conducted independently, promptly and with reasonable expedition. The victim should be able to participate effectively (see O’Keeffe v. Ireland [GC], no. 35810/09, 28 January 2014).

85.  In assessing the quality of the investigation in the present case it is sufficient for the Court to refer to the list of obvious and elementary investigative steps which had to be undertaken immediately after the incident but were still not done more than three years later, according to the conclusions of the domestic prosecutor’s office (see paragraph 48 above). Repetitive premature decisions to discontinue the proceedings only compound the impression that the authorities did not make a good-faith effort to establish what happened.

86.  There has accordingly been a violation of Article 3 of the Convention on account of the failure to conduct an effective investigation into the applicant’s ill-treatment in the detention facility.

87.  In view of that finding as well as the finding in paragraph 83 above the Court considers that there is no need to examine separately the remainder of the applicant’s complaints under Article 3 and 13 in respect of the incident of 2 October 2014.Conditions of detention

88.  The applicant and the Government made submissions set out in paragraphs 31 to 32 above.

89.  The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101 and 136-41, ECHR 2016).

90.  On account of contradictions in the applicant’s submissions before and after notice of the application had been given to the Government (see paragraph 31 above), the Court will take into account those which are most favourable for the Government’s position, notably that the applicant had been held in a cell measuring 7.3 sq. m with two other people and then in a cell measuring 6.5 sq. m with one other person. The Government’s submissions do not contradict these allegations: while they submitted that the former cell had been “designed” for two people, they did not rebut the applicant’s allegation that in fact he had been held with two other people (see paragraph 32 above).

91.  The Court finds it established, therefore, that from November 2012 to February 2014 the applicant had been held in a cell measuring 7.3 sq. m with two other people and from May 2013 to August 2015 in a cell measuring 6.5 sq. m with one other person. Some of that space was taken up by sanitary facilities.

92.  The applicant, therefore, had less than 3 sq. m of personal space at his disposal from November 2012 to February 2014 and at most between 3 and 4 sq. m of personal space from May 2013 to August 2015, spending only an hour a day outside of those cells.

93.  A strong presumption of a violation of Article 3 arises where the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons (see Muršić, cited above, § 137). In the present case, as far as the period from November 2012 to February 2014 is concerned, such a presumption arises and the Government have not rebutted it by showing that there were factors capable of adequately compensating for the scarce allocation of personal space.

94.  In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (ibid., § 139).

95.  In the present case, from May 2013 to August 2015 the applicant spent twenty-three hours a day in a cell providing him with at best 3.25 sq. m of personal space. The Government did not rebut his allegations concerning the conditions in that cell and the documentation provided by them essentially confirmed the inadequacy of the ventilation there (see paragraph 32 above). This is also consistent with the Court’s recent findings in Sukachov v. Ukraine (no. 14057/17, §§ 89 and 90, 30 January 2020) concerning the conditions in the facility in question. Accordingly, other aspects of inappropriate physical conditions of detention aggravated the lack of personal space in the cell where the applicant was held.

96.  There has accordingly been a violation of Article 3 of the Convention in respect of conditions of detention.ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

97.  The applicant complained: (i), under Article 5 § 1 of the Convention, that his detention from 10 June to 17 July 2013 had been unlawful, (ii) under Article 5 § 3 of the Convention, that the entire period of his detention had been unjustified and excessively lengthy and (iii) under Article 5 § 4 of the Convention, that a number of his applications for release (see paragraph 122 below) had not been adequately examined. Those provisions read, in so far as relevant, 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;

...

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.

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

98.  The Court further notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsArticle 5 § 1

(a)   The parties’ submissions

99.  The applicant submitted that the decision to keep him in detention on 10 June 2013 had been unlawful because the domestic court had taken that decision of its own motion, providing no grounds for the detention and setting no time-limits.

100.  The Government submitted that in extending the applicant’s detention the domestic courts had taken into account the risk that the applicant might avoid investigation and trial.

(b)   The Court’s assessment

101.  The relevant principles of the Court’s case-law can be found in Merabishvili v. Georgia ([GC], no. 72508/13, § 186, 28 November 2017).

102.  The applicant’s detention from 10 June to 17 July 2013 (see paragraphs 20 and 21 above) was based on a court decision which gave no reasons for his detention or set a clear time-limit on it thus leaving the applicant in a state of uncertainty in respect of those aspects of his detention.

103.  The Court has already found a violation of Article 5 § 1 on account of similar issues in Ignatov v. Ukraine (no. 40583/15, §§ 35 to 37, 15 December 2016) and sees no reason to reach a different conclusion in the present case. The Court notes that, following the Ignatov judgment, the Constitutional Court declared the relevant provision of the Code of Criminal Procedure unconstitutional (see paragraph 62 above).

104.  There has, accordingly, been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 10 June to 17 July 2013.Article 5 § 3

(a)   The parties’ submissions

(i)      The applicant

105.  The applicant submitted that there had been no reasons for keeping him in pre-trial detention and that the courts’ decisions extending his detention had not been based on any evidence of the risks relied upon by the courts as grounds for his continued detention.

106.  The amount of bail set as an alternative to his detention had been too high (out of proportion with his salary that had been UAH 8,000 a month) and had not taken his income into account.

(ii)     The Government

107.  The Government pointed out that the applicant’s detention had lasted from 12 November 2012 to 22 December 2014, that is to say for two years, one month and ten days. The domestic courts had examined the matter of the applicant’s detention every two months and had found that there had been a risk that the applicant could influence witnesses, prevent the establishment of truth in the case, hide from the investigation and trial and continue criminal activity.

108.  Moreover, in his applications for pre-trial detention the investigator had identified additional grounds for detention, namely: (i) that being a former police officer the applicant could influence his former subordinates and other witnesses and, because of the large number of witnesses involved, it would have been impossible to provide protection to all of them, (ii) that the applicant had failed to cooperate in the search of his house on 2 November 2012 and had failed to turn over the unregistered weapon and cash obtained as a result of the crime, and (iii) that the applicant had already used his position and connections with other police officers to falsify the criminal proceedings into the deadly traffic accident which he had caused and could do so again.

109.  As to the amount of bail set for the applicant, it had been revised and reduced (see paragraphs 12 and 16 above). While bail had been set at a high level, domestic law had allowed the court to set a higher amount of bail where a lower amount could not ensure compliance with procedural obligations.

(b)   The Court’s assessment

110.  The relevant principles of the Court’s case-law can be found in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-97, 5 July 2016), and Merabishvili (cited above, §§ 222-25).

111.  The Court observes that the domestic courts justified the applicant’s detention essentially by the seriousness of the charges against him and a risk that he, as a high-raking police official, could put pressure on witnesses or obstruct the course of the investigation in other ways. These reasons can be seen as relevant and sufficient at the initial stage of the investigation.

112.  In particular, as far as the risk of perverting the course of justice was concerned, in the pre-trial detention decisions taken on 28 December 2012 and 28 February 2013 the domestic court gave detailed reasons, based on specific facts, for why that risk was considerable and why the applicant could not be released (see paragraphs 12 and 15 above). The Court sees no reason to criticise that assessment.

113.  In the same decision of 28 December 2012, the domestic court set bail for the applicant, as was required by domestic law. Indeed, domestic legislation required the domestic courts simultaneously to find that no preventive measure (including bail) other than detention would be adequate to address the risk the applicant presented and, nevertheless, to set bail (see paragraph 61 above).

114.  Looking beyond appearances to the realities of the situation, it appears that the decision to set high bail for the applicant was not based on a genuine assessment that it would be appropriate to release the applicant on bail but rather constituted in substance a refusal to release him. That decision apparently stemmed from the conflict between, on the one hand, the domestic legislative mandate requiring that bail be set regardless of the particular circumstances of the applicant’s case, and, on the other hand, the domestic courts’ assessment that it would be unjustified to release him.

115.  Therefore, the Court considers that it is not necessary in the present case to examine the issue of bail, and will proceed with assessment of the reasoning of the domestic courts’ decisions authorising detention at the trial stage (see, for example, Muşuc v. Moldova, no. 42440/06, § 48, 6 November 2007, and Aleksandr Makarov v. Russia, no. 15217/07, § 139, 12 March 2009).

116.  Turning to that issue the Court observes that the reasons given in the pre-trial detention decisions of December 2012 and February 2013 related primarily to the conduct of the investigation. The domestic courts stated, in particular, that: (i) additional accomplices from the police force could be identified in the course of the investigation, (ii) it was necessary to avoid collusion between the applicant and his co-defendant, G., and (iii) the applicant and his contacts in law enforcement could influence witnesses (see paragraph 12 above).

117.  In the detention decisions taken at the trial stage the domestic courts consistently held that those originally identified risks persisted. However, they did not explain in what way the question of identifying potential additional accomplices or possible collusion between the applicant and his co-defendant remained relevant after 26 April 2013 (see paragraph 17 above) when the investigation had been completed, the scope of the case against the applicant had been set in a bill of indictment, the evidence of defendants and witnesses had been made accessible to both defendants and the case had been sent to court.

118.  As to the risk of undue pressure being put on witnesses, the Court is prepared to assume that that risk might have persisted, to an extent, at the trial stage, given that under Ukrainian law the courts can only rely on statements made directly at the court hearing, but not those made earlier to the investigator or the prosecutor (see paragraph 63 above, and Zhang v. Ukraine, no. 6970/15, § 69, 13 November 2018).

119.  However, the Government have not explained why, given that the authorities were aware of the risk of pressure being brought to bear on the witnesses, they did not seek their examination before a judge at the pre-trial stage, in order to render their statements admissible at the trial even in the event of their subsequent unavailability for examination (domestic law provided for that possibility, see paragraph 64 above) or why the witnesses at risk could not have been examined at the opening of the trial as a priority and why it had taken the domestic court until 22 December 2014 – more than a year and seven months – to complete such examinations.

120.  In summary, while the reasons initially given at the pre-trial investigation stage for the applicant’s detention could be seen as relevant and sufficient, those reasons did not evolve with the passage of time. The domestic courts did not attempt to demonstrate the existence of specific facts which would prove that the declared risks outweighing the rule of respect for individual liberty continued to pertain (see, for example, Khayredinov v. Ukraine, no. 38717/04, §§ 40 and 41, 14 October 2010, and Makarenko v. Ukraine, no. 622/11, § 91, 30 January 2018).

121.  There has, accordingly, been a violation of Article 5 § 3 of the Convention.Article 5 § 4

122.  The applicant complained that the domestic courts had failed to conduct a meaningful examination of his applications for release on 17 July, 15 August, and 20 December 2013, and 12 November 2014 since no due response had been given to the applicant’s arguments.

123.  The Government submitted that all of the applicant’s applications for release had been examined by domestic courts and the domestic courts had duly extended his detention.

124.  The Court notes that it has already examined this issue under Article 5 § 3 of the Convention. It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see, mutatis mutandis, Ignatenco v. Moldova, no. 36988/07, § 91, 8 February 2011, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 525, 25 July 2013). Accordingly, the Court considers that there is no need to examine separately the applicant’s complaint under Article 5 § 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

125.  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

126.  The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage.

127.  The Government considered that claim unjustified and excessive.

128.  The Court awards the applicant EUR 15,600 in respect of non‑pecuniary damage.Costs and expenses

129.  The applicant also claimed EUR 6,535 for the costs and expenses incurred before the Court, including EUR 6,000 for legal fees and EUR 535 for translation and postal expenses.

130.  The Government contested those claims considering them unsupported by appropriate documentation and excessive.

131.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 4,000 for the proceedings before the Court.Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to ensure the applicant’s safety in the detention facility;Holds that there has been a violation of Article 3 of the Convention on account of the failure to conduct an effective investigation into the applicant’s ill-treatment in the detention facility;Holds that there is no need to examine separately the remainder of the applicant’s complaints under Article 3 and 13 in respect of the incident of 2 October 2014 in the detention facility;Holds that there has been a violation of Article 3 of the Convention in respect of conditions of detention;Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 10 June to 17 July 2013;Holds that there has been a violation of Article 5 § 3 of the Convention;Holds that there is no need to examine separately the applicant’s complaint under Article 5 § 4 of the Convention;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 15,600 (fifteen thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 4,000 (four 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 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Arnfinn Bårdsen
Deputy RegistrarPresident

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