FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 75522/01
by Andrey Antonovich MIKHANIV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 20 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar.
Having regard to the above application lodged on 26 February 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrey Antonovich Mikhaniv, is a Ukrainian national who was born in 1966 and lives in Kyiv. He also acquired Russian citizenship in 1999. He is represented before the Court by Mr D.A. Koutakh, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) are represented by their Agents, Ms V. Lutkovska, Ms Z. Bortnovska and Mr Y. Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former vice-president of the Khlib Ukrainy Company (ДАК Хліб України), a State-owned company trading in grain.
1. Criminal proceedings against the applicant
On 11 January 2000 the General Prosecutor’s Office (the “GPO”) opened a criminal investigation in respect of the applicant and another employee of Khlib Ukrainy on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of approximately 44,000 euros (EUR) via the private company Ukrzovnishtorg (“the Ukrzovnishtorg case”). The applicant was also accused of producing a copy of a forged university degree certificate when applying in 1996 for a position in the civil service.
On 14 January 2000 the GPO ordered a search of the applicant’s homes in Kyiv and Dnipropetrovsk. On 17 January 2000 the above premises were searched by investigators, who seized cash and jewellery as security for the State’s possible pecuniary claims against him. Subsequently, in January and August 2000 the authorities secured an attachment against the applicant’s car and property in Kyiv and Dnipropetrovsk, and froze his account with the Crédit Lyonnais bank.
The applicant was arrested on 17 January 2000.
On 19 January 2000 the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery and interrogated him in the presence of his lawyer. The applicant admitted to forgery of the degree certificate but pleaded not guilty to the embezzlement charges.
On 20 January 2000 the Deputy Prosecutor General ordered the applicant’s detention on remand for two months on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice. The applicant appealed against his detention to the Pechersky District Court of Kyiv (“the Pechersky Court”).
On 4 March 2000 the applicant was transferred from the Kyiv City Temporary Detention Centre (Ізолятор тимчасового утримання – “the ITU”) where he had been held in police custody, to the Kyiv City Pre-trial Detention Centre no. 13 (Київський слідчий ізолятор № 13 – “the Kyiv SIZO”).
On 14 March 2000 the GPO extended the applicant’s detention to five months.
On 15 March 2000 the GPO opened two more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via the Internova Trading Company and the Anmikh-Rossiya Company (respectively “the Internova case” and “the Anmikh case”). These cases were joined to the Ukrzovnishtorg case.
On 27 March 2000 the Pechersky Court, on the applicant’s appeal, revoked the detention order of 20 January 2000. The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released. In particular, the applicant had his permanent residence in Ukraine and financially supported his wife and a child living in Kyiv. He had never failed to respond to a summons or attempted to obstruct the investigation. Moreover, the court found that, when ordering the applicant’s detention, the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses.
On the same day, without releasing him from the Kyiv SIZO, the investigator placed him under arrest again, this time on suspicion of involvement in the Internova case. The Deputy General Prosecutor, on that same date, ordered the applicant’s detention on remand for a period of two months on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice.
On 27 March 2000 the applicant was transferred to the Kyiv ITU, where he remained until 17 April 2000.
On 28 March 2000 the applicant was officially charged with embezzlement of public funds in the Internova case.
On 30 March 2000 the Deputy Prosecutor Generallodged a request for supervisory review (protest) with the Kyiv City Court against the Pechersky Court’s decision of 27 March 2000.
On 10 April 2000 the Presidium of the Kyiv City Court quashed the Pechersky Court’s decision of 27 March 2000 and upheld the detention order of 20 January 2000. It found that the applicant’s wife and two children lived in Estonia. In Ukraine the applicant lived with his partner and their son in Kyiv whilst being registered in Dnipropetrovs’k. He had two registered addresses (in Ukraine and Estonia), three international passports (one Russian and two Ukrainian: ordinary and official) and had an account with an Estonian bank, and was therefore likely to abscond if released. Moreover, the Kyiv City Court held that the first-instance court had overlooked the fact that the applicant in his appeal had requested the “replacement of the preventive measure” rather than the “annulment of the detention order” and, therefore, this appeal fell outside the scope of judicial review at the investigation stage.
On 29 May and 29 August 2000 the GPO prolonged the applicant’s pre-trial detention respectively to eight months and eleven months.
On 27 October 2000 the investigator, with a view to preventing any communication between the applicant and his co-accused, ordered the applicant’s transfer from the Kyiv SIZO to the Zhytomyr Regional Pre-trial Detention Centre no. 8 (Житомирський обласний слідчий ізолятор № 8 – “the Zhytomyr SIZO”) for the period from 30 October to 30 November 2000.
The applicant was transferred to the Zhytomyr SIZO on 1 November 2000. According to the applicant he shared a cell with convicted inmates for a certain period of time.
On 27 November 2000 the GPO prolonged the applicant’s detention to twelve months.
In November 2000 the applicant’s lawyer requested access to the documents justifying the applicant’s continued detention on remand and the charges laid against him. On 13 November 2000 and 29 January 2001 the investigator provided the lawyer with copies of the decision to open criminal proceedings (постанова про порушення кримінальної справи), the arrest records (протоколи затримання) of 17 January, 28 March and 28 December 2000, a record of the body search of the applicant (протокол особистого обшуку), his rights notification form (протокол роз’яснення прав підозрюваного), statements of charges (постанови про притягнення як обвинуваченого) of 19 January 2000, 28 March 2000 and 28 December 2000, and records of the applicant’s interrogations after the formal charging proceedings (протоколи допиту як обвинуваченого). Access to the remainder of the case file was refused on the ground that under Article 48 of the Code of Criminal Procedure (the “CCP”) he could consult those other documents only after the conclusion of the investigation stage. The applicant’s complaints to the GPO and the courts about such refusal were to no avail.
On 14 December 2000 the investigator ordered the applicant’s transfer back to the Kyiv SIZO.
Meanwhile, on an undetermined date in December 2000, the applicant’s lawyer appealed against the prosecutor’s detention orders of 20 January 2000 and 27 March 2000.
On 27 December 2000 the appeal was examined by the Pechersky Court in the presence of the prosecutor and the applicant’s lawyer. The court held that, although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges, the other grounds provided for by the law should also be taken into account. The Pechersky Court found, in particular, that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice. The applicant had permanent residence in Ukraine and could not lawfully leave it since his international passport had expired. The applicant lived with his wife and two children in Ukraine. He also financially supported his father and mother-in-law, who lived in Ukraine. Moreover, the applicant suffered from serious health problems. The Pechersky Court considered the medical experts’ report produced by the prosecution, to the effect that the applicant was fit for detention in the remand facilities, unreliable in the light of the fact that during his detention in the Zhytomyr SIZO the applicant had not been administered any of the drugs prescribed for him. On the basis of the above findings the Pechersky Court quashed the detention orders of 20 January 2000 and 27 March 2000. On the same day the Deputy Prosecutor Generallodged a request for supervisory review against this decision.
On 28 December 2000 the applicant, while still detained in the Kyiv SIZO, was arrested by the investigator on suspicion of involvement in the Anmikh case. On the same day the applicant was officially charged with the said offence and transferred to the ITU.
On 3 January 2001 the Zhytomyr Regional Prosecutor’s Office informed the applicant’s lawyer that the person responsible for placing the applicant in a cell with inmates of another category had incurred disciplinary liability.
On 5 January 2001 the GPO extended the applicant’s pre-trial detention to fifteen months.
On 11 January 2001 the applicant was transferred from the Kyiv ITU to the Kyiv SIZO.
On 15 January 2001 the Presidium of the Kyiv City Court, following the prosecution’s request for supervisory review, quashed the Pechersky Court’s decision of 27 December 2000, citing essentially the same arguments as in its decision of 10 April 2000. The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges, as provided for by Article 155 of the CCP.
On 25 January 2001 the applicant asked the investigator to allow an Estonian lawyer, Mr Sergeyev, to represent him in the criminal proceedings. On 21 February 2001 the investigator refused this application on the ground that Mr Sergeyev did not have the necessary qualifications, namely Ukrainian citizenship and sufficient knowledge of Ukrainian language and law. The applicant filed an administrative complaint with the Pechersky Court. On 6 April 2001 the court ruled that it had no administrative jurisdiction to deal with such matters.
On 15 February, 13 and 28 April 2001 the applicant’s lawyer requested access to the decisions on prolongation of the applicant’s pre-trial detention but it was denied on the ground that under Article 48 of the CCP he could consult them only after the conclusion of the investigation stage.
On 5 April 2001 the GPO extended the applicant’s detention up to eighteen months.
On 31 May 2001 the GPO instituted another criminal case against the applicant and Mr L. respectively for giving and taking bribes. This case was joined to the criminal case against the applicant.
On 18 June 2001 the applicant and his lawyer were granted access to the 120-volume case file. The applicant, however, refused to study the case file, alleging that the relevant formalities had not been completed. On the same day the investigator rejected this complaint as unsubstantiated.
On 16 July 2001 the prosecution lodged the bill of indictment with the Kyiv City Court of Appeal (the former Kyiv City Court).
On an unknown date the applicant requested and was granted access to the case file, a right which he and his lawyer exercised from 20 July to 26 September 2001.
On an unknown date in September 2001 the Kyiv City Court of Appeal referred the applicant’s case file to the Radyansky District Court of Kyiv for examination.
On 11 October 2001 the Deputy Prosecutor General decided that only the Ukrzovnishtorg case was ready for trial and withdrew the remainder of the charges because they required further pre-trial investigation.
On 12 October 2001 an amended bill of indictment was lodged with the Svyatoshynsky District Court[1] (“the Svyatoshynsky Court”).
On 1 November 2001 a preparatory hearing was held before a judge of the Svyatoshynsky Court. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand. The applicant’s request for release was rejected on the ground that, although he had already spent a total of 21 months in detention, the period of his detention during the investigation had not exceeded 18 months and thus was in compliance with Article 156 of the CCP. The judge considered that the applicant’s transfer to the Zhytomyr SIZO was necessary for the proper conduct of the investigation and that there was no indication of ill-treatment. He concluded that there were no medical or other special circumstances warranting the applicant’s release.
The proceedings before the trial court started on 26 November 2001.
At a hearing on 18 January 2002 the Svyatoshynsky Court dismissed the applicant’s request for release, stating that there were no new circumstances warranting a re-evaluation of the preventive measure imposed. The court also granted the prosecution’s motion to adjourn the hearing until 1 February 2002 to allow the new prosecutor to familiarise himself with the case file.
On 1 February 2002 the Svyatoshynsky Court of its own motion decided that further pre-trial investigation was necessary. The court also ordered the applicant’s release on an undertaking not to abscond.
On 2 February 2002 the applicant tried to leave Ukraine for Russia by train but was stopped on the border and sent back to Kyiv.
On an unspecified date the prosecution appealed against the remittal of the case for further investigation, considering that it was ready for examination on the merits. The applicant also challenged the remittal, stating that it was motivated by the court’s reluctance to acquit him. On 18 April 2002 the Kyiv City Court of Appeal granted the appeals, quashed the decision of 1 February 2002 and ordered that the trial proceedings in the applicant’s case be resumed.
The hearings before the Svyatoshynsky Court resumed on 30 April 2002. On 14 August 2002 the trial court ordered that by 19 September 2002 the GPO was to carry out additional enquiries in order to collect further evidence. However, it was not until 24 December 2002 that the authorities produced the requested evidence in court and the trial could resume.
On 11 February 2003 the Svyatoshynsky Court acquitted the applicant of the charges brought against him. The prosecution appealed. On 28 June 2003 the Kyiv City Court of Appeal upheld the applicant’s acquittal.
On 13 July 2004 the Supreme Court, following the appeal of the GPO, quashed the decisions of the Svyatoshynsky Court and the Kyiv City Court of Appeal and remitted the case for further investigation.
The case file was received by the GPO on an unknown date in October 2004. On 28 October 2004 the investigator amended the applicant’s charges in accordance with the new 2001 Criminal Code. On the same day the applicant was summoned to give evidence but failed to appear. Since then, according to the Government’s submissions, the GPO has carried out a number of forensic examinations, questioned witnesses and seized documentary evidence. Further documents have been requested and received from Swiss authorities.
On an unknown date the applicant made use of the recent amendments to the CCP by challenging the initial decision of the GPO of 11 January 2000 to institute criminal proceedings against him. On 24 November 2005 the Pechersky Court allowed this application and revoked the impugned decision. The prosecution appealed. On 2 February 2006 the Kyiv City Court of Appeal quashed the Pechersky Court’s decision and rejected the applicant’s application.
The investigation in the applicant’s case is still pending.
2. Administrative proceedings concerning lawfulness of detention
On 18 July 2001 the applicant’s lawyer, referring to Article 29 § 1 of the Constitution, filed an administrative complaint about the inactivity of the administration of the Kyiv SIZO, namely for their failure to release the applicant after 17 July 2001, when the overall term of his detention had reached eighteen months. On 20 August 2001 the Shevchenkivsky District Court of Kyiv refused to entertain this complaint on the ground that the lawyer’s authority to act issued by the applicant was limited to the criminal proceedings before the Kyiv Court of Appeal. This decision was not appealed against by the applicant.
The applicant’s similar administrative complaint against the GPO was declared inadmissible on 26 October 2001 by the Pechersky Court on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before the Radyansky Court.
3. Medical treatment
After the applicant’s arrest in January 2000 his health started to deteriorate. According to the Pechersky Court’s decision of 27 March 2000 the applicant started to receive medical treatment in the Kyiv SIZO for his illnesses as early as March 2000.
On 15 June 2000, in response to the applicant’s numerous requests, the investigator dealing with his case ordered that a forensic medical report on the applicant’s state of health be obtained. In its report no. 83 of 16 June 2000, a commission of the Kyiv City Bureau of Forensic Medical Examinations (Київське міське бюро судово-медичних експертиз) stated that the applicant suffered from a post-traumatic encephalopathy, duodenal ulcer with reflux and heart pathology. The applicant was prescribed diet and heart drugs. In conclusion the experts suggested that the applicant’s encephalopathy be examined in a specialised neurological institution.
On 4 August 2000 the applicant’s lawyer requested that the applicant be released, under an obligation not to abscond, as a result of his aggravated state of health. In a reply of 10 August 2000, the Head and the Chief Physician of the SIZO informed the lawyer that the applicant’s state of health was satisfactory and that he was fit for detention.
On 21 August 2000 the GPO rejected a similar request by the applicant’s lawyer for his release on health grounds.
On 29 August 2000 an expert commission of the Kyiv City Centre of Forensic Psychiatric Examinations (Київський центр судово-психіатричних експертиз), with the participation of a neuropathologist from the district hospital, drew up a forensic report (no. 957) at the request of the investigator. The commission found that the applicant suffered from post-traumatic encephalopathy (after a head injury suffered at the age of fifteen). According to the applicant this disease caused him severe headaches and hand tremor. The applicant was prescribed the relevant drugs. He was found fit for detention on remand subject to the prescribed treatment. This report was not served on the applicant.
On 1 November 2000 the applicant was transferred to the Zhytomyr SIZO.
On 20 December 2000 the applicant’s lawyer asked the Governor of the Zhytomyr SIZO whether they had provided the applicant with the medicines prescribed for him.
On 25 December 2000 the Governor of the Zhytomyr SIZO issued a letter, stating that on his admission the applicant had been examined by the prison doctors, who had diagnosed him as suffering from encephalopathy. Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the Kyiv experts. The Governor stated that, although the content of the above medical experts’ reports had been made known to the prison authorities, the drugs prescribed in those reports were not in the possession of the Zhytomyr SIZO and thus could not be administered to the applicant.
On 11 January 2001, that is to say after the applicant’s transfer from the Kyiv ITU, he was examined by a doctor from the medical department of the Kyiv SIZO, who found that he suffered from headaches, heart and stomach pains. The applicant was prescribed fifteen drugs, including those specified in the experts’ reports. According to the entries in the applicant’s medical records, until late January 2001 he continued to experience the same health problems. However, from 27 January 2001 onwards, except for occasional headaches or heavy heart-beating, the applicant generally did not feel any pain or discomfort. Until his release on 1 February 2002 the applicant was each day (except for July and October 2001) administered appropriate drugs pursuant to the instructions of prison doctors. During this period the applicant was examined by a prison doctor on 21 occasions, by a neuropathologist on two occasions and by a cardiologist on four occasions.
Between April and July 2001 the applicant’s lawyer filed a number of applications with the Governor of the Kyiv SIZO and the investigator, seeking to have his client examined by an independent surgeon, a neuropathologist and a cardiologist. On 8 and 15 June and 16 July 2001 the Governor and the Head of the Kyiv SIZO medical department informed the lawyer that his client had received the required treatment and that his state of health was satisfactory. The question of the applicant’s access to independent doctors fell outside their competence and should have been addressed to the GPO.
On 16 May 2001 the GPO enquired as to the specialisation, names and positions of the doctors whom the lawyer wished to engage in the examination of the applicant. By a letter of 21 May 2001 the Prosecutor General informed the lawyer that his client had received the appropriate treatment and that there was no need for any independent evaluation of his state of health. However, as shown in the documents provided by the Government, on two occasions (5 September 2001 and 16 January 2002), the administration of the Kyiv SIZO of their own motion requested the Kyiv City Central Hospital (Центральна міська клінічна лікарня – a civil medical institution as opposed to prison medical units, which treated the applicant during his detention) to conduct an examination of the applicant’s health. Although on both occasions the consent of the Hospital was received, the applicant refused to submit to these examinations without giving any reasons.
In the meantime, on 14 February 2001 the applicant’s lawyer instituted administrative proceedings against the prison authorities and the GPO for their alleged failure to ensure proper medical treatment of his client. On 28 September 2001 the Pechersky Court decided not to examine the complaint on the ground that the applicant’s lawyer had failed to appear in court on two occasions.
B. Relevant domestic law
The relevant domestic law is summarised in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-56, ECHR 2005‑II).
COMPLAINTS
The applicant complained under Article 3 of the Convention about the conditions of his detention on remand. He further complained about the alleged unlawfulness and the length of his detention on remand (Article 5 §§ 1 (c) and 3 in substance). He finally complained under Article 6 §§ 1 and 3 (c) of the Convention respectively about the length of the criminal proceedings against him and a violation of his right to defence.
THE LAW
I. SCOPE OF THE CASE
The Government submitted that at the initial stages of the proceedings before the Court the only representative of the applicant was his sister Ms A. Komleva, to whom the applicant issued the letter of authority. The Government considered that submissions made by other persons in 2001-2002 should not be taken into account since the applicant had never authorised these persons to act on his behalf before the Court.
The applicant disagreed. In particular, he submitted that while being detained on remand his possibilities of communicating with the outside world were severely impaired and that he had used every opportunity to convey his grievances to the Court. He further maintained that the domestic authorities had refused to certify the authority form.
The Court notes that where an applicant chooses to be represented by a lawyer under Rule 36 of the Rules of Court, rather than to introduce an application himself, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by his representative (see Willis and Others v. the United Kingdom (dec.), no. 49764/99, 4 March 2003). It notes that certain documents, such as an order issued by an “advocates’ union”, can imply that the representative is entitled to lodge an application with the Court (see Falkovych v. Ukraine (dec.), no. 64200/00, 29 June 2004). It observes however that there is no requirement in the Rules of Court that the letter of authority must be certified.
In the present case, Ms Komleva, whose authority to represent the applicant has not been challenged by the Government, submitted the first letter to the Court in February 2001, in which she complained that the applicant’s detention was unlawful and that his rights under Articles 3 and 6 of the Convention had been breached. In June 2001 she submitted the application form on behalf of the applicant, in which she reiterated the same complaints under Articles 3 and 6 of the Convention. Together with the application form, she submitted a letter of authority signed by the applicant and certified by the applicant’s lawyer, Mr Amelin, in which it was written that the applicant authorised his sister to be his representative “in the European Court of Human Rights (Strasbourg) and the Monitoring Committee of the Council of Europe with the right to submit and sign on my behalf all documents (including applications and complaints), necessary to use the powers given to her”. In September 2001 Ms Kimleva submitted another letter to the Court, in which she raised, without reference to Convention provisions, the issue of the length and unlawfulness of the applicant’s detention.
In 2001-2002 a number of other submissions to the Court with respect to the criminal case against the applicant were made by his friend Mr Sklyarov, lawyers Mr Sergeyev and Mr Amelin and by a human rights activist Mr Kurepin. None of these persons submitted any document confirming their authority to act on the applicant’s behalf before the Court, even though Mr Sergeyev was informed about this requirement by the Court’s letter of 18 May 2001 and the lawyer Amelin had to be aware of this requirement, given that he had obtained from the applicant the authority form for Ms Komleva. The Court further notes that the case materials demonstrate that Mr Amelin was representing the applicant in the impugned criminal proceedings; it is not clear however what the scope of such representation was, given that he was not allowed by the domestic courts to act outside the criminal proceedings and that the copy of the relevant authority form has not been submitted to the Court. Therefore, the Court, unlike in the Falkovych case (cited above), cannot conclude that the authority issued by the applicant to Mr Amelin was of such a nature as to entitle this representative to take any legal action aimed at remedying the applicant’s situation outside the criminal proceedings against the applicant.
The Court also notes that Ms Komleva, the authorised representative of the applicant, made no reference to the submissions of the above persons in her correspondence with the Court at the initial stage of the proceedings and the first mention of those submissions was made by the applicant’s new representative Mr Kutakh in his reply to the Government’s observations only after communication of the application. He referred to the other submissions and complaints by the applicant’s representatives. Even then, no authority forms had been furnished. The Court further notes that the applicant had been aware of the requirements as to representation before the Court as he had issued an authority form to his sister. Moreover, the applicant was not kept incommunicado and had access to the lawyer of his choosing; therefore it does not appear that he faced any practical difficulties in giving the authority forms for representation before this Court to any persons of his choosing, including the above-mentioned Messrs Sergeyev, Sklyarov, Amelin and Kurepin. The Court therefore sees no good reason for the applicant’s failure to furnish such authority forms in respect of the above persons.
The Court therefore concludes that only the submissions by Ms Komleva as to the complaints under Articles 3, 5 §§ 1 (c) and 3, and 6 §§ 1 and 3 (c) of the Convention, and the replies of Mr Kutakh to the Government’s observations on these complaints, are to be taken into account in the examination of the present case, since only these two persons were expressly authorised by the applicant to represent him before the Court.
The Court further notes that in 2005 Mr Kutakh presented another complaint under Article 6 § 1 of the Convention and a complaint under Article 7 of the Convention. In the Court’s view, the new complaints are not an elaboration of the applicant’s original complaints of 2001, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that the lack of medical assistance in the detention facilities amounted to inhuman and degrading treatment contrary to Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Exhaustion of domestic remedies
The Government maintained that the applicant had failed to exhaust the domestic remedies available to him under Ukrainian law. In particular, they stated that the applicant could have brought civil or administrative proceedings against the prison authorities concerning alleged violations of his rights. However, the applicant’s administrative complaint against the General Prosecutor’s Office and the administration of the Kyiv SIZO had not been examined owing to his lawyer’s failure to appear.
The applicant disagreed.
The Court reiterates that the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see, for example, Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). The Court further emphasises that Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism. Moreover, the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically. In reviewing whether the rule has been observed, it is essential to have regard to the existence of formal remedies in the legal system of the State concerned, the general legal and political context in which they operate, as well as the particular circumstances of the case and whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see, for example, Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004).
The Court notes that it is not in dispute between the parties that the applicant, his lawyers and relatives have on many occasions raised complaints with the prison, investigative and judicial authorities concerning the insufficiency of the medical treatment afforded to him during his detention. The authorities were thereby made sufficiently aware of the applicant’s situation and had an opportunity to examine the conditions of his detention and, if appropriate, to offer redress.
The Court reiterates that Article 35 § 1 requires not only that a domestic remedy should be available, but that it should be effective to redress the alleged breach of an individual’s Convention rights. While it is true that the applicant did not bring civil or administrative proceedings to complain of his conditions of detention and in particular the alleged inadequacy of his medical treatment, the Court notes that the Government have not shown how recourse to such proceedings could have brought about an improvement in this matter. Nor have they supplied any example from domestic case-law to show that such proceedings by a prisoner would have stood any prospect of success (see Khokhlich v. Ukraine, no. 41707/98, § 153, 29 April 2003).
In these circumstances, the Court considers that it has not been sufficiently established that recourse to the remedies suggested by the Government would have been capable of affording redress to the applicant in relation to his complaints concerning his conditions of detention. The Court therefore rejects this argument.
B. As to other issues of admissibility
The Government further maintained that, although the applicant did suffer from several insignificant illnesses, the very fact that expert examinations of his medical condition had been conducted pointed to the authorities’ care for his health. They stated that after 11 January 2001 the applicant had been prescribed and had received the relevant treatment in the Kyiv SIZO. Moreover, the applicant had refused on two occasions to undergo examinations by independent doctors without giving any reason.
He stated that the medical treatment he had received during his detention was inadequate. In particular, while he was held in the Zhytomyr SIZO he did not receive any proper care. He further maintained that the expert examinations and the treatment and medication provided to him after January 2001 were a result of his and his lawyer’s numerous complaints. Therefore, in his opinion, the authorities could not take credit for them.
The Court considers that the examination of the applicant’s complaint under Article 3 must be limited to the periods of detention which fall within the six-month period prior to the date on which the present application was lodged (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). Therefore, only the following periods of the applicant’s detention could be examined:
from 28 December 2000 to 11 January 2001 in the Kyiv ITU;
between 17 April and 1 November 2000, between 14 and 28 December 2000 and between 11 January 2001 and 1 February 2002 in the Kyiv SIZO;
from 1 November 2000 to 14 December 2000 in the Zhytomyr SIZO.
As regards the applicant’s confinement in the Kyiv ITU and the Kyiv SIZO, the Court, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, finds that the applicant’s submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
As to the applicant’s complaint about the inadequacy of the medical care afforded to him in the Zhytomyr SIZO, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The applicant complained that his detention on remand had been unlawful and excessively long. The Court considers that these complaints are to be considered respectively under Article 5 § 1 (c) and Article 5 § 3 of the Convention., which, in so far as relevant, provides 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.”
A. Ukraine’s reservation
With regard to the complaints under Article 5 §§ 1 (c) and 3 of the Convention, the Government raised the issue of a reservation to Article 5 § 1 (c) of the Convention, having been lodged by Ukraine in accordance with Article 57 of the Convention with the intention of preserving the procedure governing arrest and detention in force at the material time. Under that procedure, all arrests and detentions had to be authorised by a public prosecutor pending the expiry of the Transitional Provisions of the Constitution, namely on 28 June 2001.
The Court notes that the Government’s arguments as to application of this reservation to the provisions of Article 5 §§ 1 (c) and 3 in the present case are similar to those raised by them in a number of other cases against Ukraine (Salov v. Ukraine (dec.), no. 65518/01, 27 April 2004, and Falkovych v. Ukraine, cited above). The Court recalls its findings in the above cases that the reservation in question covers only the procedure of initial arrest and detention under Article 5 § 1 (c) of the Convention, but does not cover the issue of continued detention and does not apply to Article 5 § 3 of the Convention (see Nevmerzhitsky v. Ukraine, cited above, §§ 113-114, and Salov v. Ukraine, cited above).
B. Exhaustion of domestic remedies
The Government maintained that the applicant had been able to lodge an administrative complaint against the prison authorities for failure to release him on expiry of the eighteen-month time-limit for detention during the investigation, but had failed to use this remedy as his lawyer had not proved his authority to represent the applicant in proceedings outside the criminal court with the result that the complaint had been declared inadmissible. The Government, therefore, was of the opinion that the applicant had failed to exhaust all available domestic remedies. The applicant considered this remedy ineffective.
The Court notes that the applicant’s lawyer lodged two administrative complaints alleging that the applicant’s detention was unlawful, and only the first one was rejected on the grounds referred to by the Government, while the second complaint was rejected for the administrative courts’ lack of jurisdiction to hear such issues. The Court therefore dismisses this objection.
C. As to other issues of admissibility
The Government stated that the applicant was re-arrested in accordance with a procedure established by law. Moreover, the unlawful and unreasonable Pechersky Court decision to release him was quashed by a higher instance.
The Government argued that a period of twenty-four and a half months for the applicant’s detention on remand was reasonable in the circumstances. They pointed out that in extending the time-limits of the applicant’s detention the prosecutors had referred, inter alia, to the risk of his absconding or perverting the course of justice. In this connection the Government stated that those submissions were justified by the fact that the applicant had three international passports (one Russian and two Ukrainian, including an official passport), that his family lived in Estonia, that he had several accounts in foreign banks and that he was accused of committing offences in collaboration with certain persons who were at large at the material time.
The Government further maintained that the length of the applicant’s detention had been justified by the complexity of the case: the applicant was charged with four distinct offences, three of which involved complex economic fraud and international transactions. The authorities had to carry out a number of time-consuming investigations, involving several examinations by accountancy experts and ordering and processing financial documents from foreign law-enforcement agencies. After the case was referred to the court for trial, the applicant requested access to the case file, which was granted. Therefore the State could not bear responsibility for the period between 20 July and 26 September 2001 when the applicant and his lawyers were studying the case file. The trial proceedings lasted for three months, during which period the Svyatoshynsky Court held nine hearings, questioned witnesses, examined five motions from the applicant’s lawyers and issued three orders for the compulsory appearance of witnesses.
The applicant considered that his detention had been arbitrary and unlawful. He further challenged the authorities’ failure to bring him promptly before a judge for examination of the lawfulness of his detention on remand. He finally contested the reasonableness of the length of his detention on remand, stating that in the subsequent trial it had become apparent that the eighteen-month pre-trial investigation had not produced any compelling evidence of his guilt.
The Court considers, in the light of the parties’ submissions, that these complaints under Article 5 §§ 1(c) and 3 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaint are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Reasonable time
The applicant maintained that his right to a “hearing within a reasonable time” had not been respected and that there had accordingly been a violation of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
There was no dispute over the fact that the proceedings started on 11 January 2000, when the criminal investigation was instituted against the applicant. The proceedings in issue are still pending before the General Prosecutor’s Office. The Court accordingly finds that the proceedings have lasted for over eight years.
The Government repeated their submissions with regard to Article 5 § 3. They contended that there had been no significant periods of inactivity in the proceedings for which the judicial authorities could be held responsible and that, accordingly, there had been no violation of Article 6 § 1.
The applicant maintained that his right to a hearing within a reasonable time had been infringed.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. The right to a lawyer
The applicant further alleged that the limitations set at the early stages of the proceedings on his right to chose his lawyer, Mr Sergeyev, were contrary to Article 6 § 3 (c) of the Convention, which provides:
“3. Everyone charged with a criminal offence has the following minimum rights: ...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
The Court notes that the criminal proceedings in his case are still pending. It follows that this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The Court finds that it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the conditions of his detention in the Zhytomyr SIZO (Article 3), the alleged unlawfulness and the length of his detention on remand (Article 5 §§ 1 (c) and 3), and the length of the criminal proceedings against him (Article 6 § 1);
Declares inadmissible the remainder of the application.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1] Following reorganisation of districts in the city of Kyiv, the Radyansky District Court, to which the applicant’s case had been allocated, was merged with another district court to become the new Svaytoshynsky District Court in October 2001.
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