Information Note on the Court’s case-law No. 74
April 2005
Nevmerzhitsky v. Ukraine - 54825/00
Judgment 5.4.2005 [Section II]
Article 3
Torture
Manner in which forced feeding was applied to a detainee on hunger strike without any medical justification for such a measure: violation
Article 5
Article 5-1
Lawful arrest or detention
Decision to prolong detention periods taken by prosecutors: violation
Article 5-3
Length of pre-trial detention
Prolongation of detention on remand (two years and five months) not justified in view of the detainee’s state of health and the conditions of detention: violation
The applicant, a former bank manager, was detained in April 1997 on suspicion of having committed unlawful currency transactions. He was subsequently charged on this ground, as well as of abuse of power, fraud and forgery. The applicant unsuccessfully complained to the District court against the investigator of the case, whom he claimed had acted unlawfully. The detention order was extended on five successive occasions to permit additional investigations by the prosecution, and the applicant’s release on bail was refused. Several times during his detention, as a result of having gone on hunger-strike, the applicant was subjected to force-feeding, which he claims caused him substantial mental and physical suffering, in particular given the manner in which it was carried out: he had frequently been handcuffed to a chair or heating facility and forced to swallow a rubber tube connected to a bucket with a special nutritional mixture. He also maintains that whilst remanded in custody he was deprived of adequate medical treatment for the various diseases that he suffered from, and that the conditions of detention (overcrowding, lack of proper hygiene, infested bedding, placing in an isolation cell for 10 days while on hunger strike) were also in breach of Article 3 of the Convention. Although the maximum statutory period of detention in the applicant’s case expired in September 1998, he was only released in February 2000. In February 2001, the City court sentenced the applicant to five and a half years’ imprisonment for repeated financial fraud, forgery and abuse of power. On the basis of the Amnesty Law, and since he had been detained for nearly three years, the court dispensed him from serving the sentence.
Law – Article 38 § 1: The Government had failed to furnish all necessary facilities to the Court in its task of establishing the facts, in particular for not having provided a medical report on the decision on the basis of which the applicant had been subjected to force-feeding, or information on the legal basis for the applicant’s continued detention or his placement in an isolation cell.
Article 3 – (i) Conditions of detention and the lack of medical treatment and assistance: Bearing in mind that the applicant’s submissions were consistent and corresponded in general to the inspections conducted by the Committee for the Prevention of Torture and those of the Commissioner for Human Rights of the Ukrainian Parliament, the Court concluded that the applicant had been detained in unacceptable conditions which amounted to degrading treatment. The same conclusion was reached by the Court as regards the lack of adequate treatment administered to the applicant. Prior to his detention the applicant had not been suffering any skin disease and his state of health was normal. Moreover, despite the independent medical examination which had recommended that the applicant be given treatment in a specialised hospital, this had not been followed.
(ii) Force-feeding: The Government had not demonstrated that there was a “medical necessity” to force-feed the applicant. It can only therefore be assumed that the force-feeding was arbitrary. Procedural safeguards were not respected in the face of the applicant’s conscious refusal to take food. The authorities had not acted in the applicant’s best interests in subjecting him to force-feeding. Whilst the authorities had complied with the manner of force-feeding prescribed by the relevant decree, the restraints applied – handcuffs, mouth-widener, a special tube inserted into the food channel – with the use of force, and despite the applicants resistance, had constituted treatment of such a severe character warranting the characterisation of torture.
Conclusion: violation (unanimously).
Article 5 § 1 – Although Ukraine had made a reservation under Article 5 § 1 that it was under no obligation to guarantee that the initial arrest and detention of persons be ordered by a judge, the Court considered that the issue of continued detention was not covered by that reservation. Hence, as the prolongation orders had been taken by prosecutors and the courts had only reviewed such decisions at a later stage, several of the periods the applicant had spent in detention were not based on lawful grounds.
Conclusion: violation (six votes to one).
Article 5 § 3 – Even though the investigation of economic offences presents the authorities with special problems, the Court could not accept that it had been necessary to detain the applicant for so long in pre-trial detention without either prompt or regular judicial supervision. As regards the actual length of the detention, bearing in mind the applicant’s state of health, the conditions of detention and the fact that no alternative preventive measures were considered by the authorities, the reasons given by the prosecution for the prolonged detention (a possible interference with the investigation and the suspicion that the applicant had committed the offences with which he was charged) could not justify the applicant’s continued detention for more than two years and five months.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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