FIFTH SECTION

DECISION

Application no . 2718/12 Tetyana Viktorivna AVRAAMOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 5 Fe b ruary 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , Paul Lemmens , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 December 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Tetyana Viktorivna Avraamova , is a Ukrainian national, who was born in 1970 and is currently detained in the Simferopol Pre-Trial Detention C entre (SIZO) . She is represented before the Court by Mr S.P. Ponomaryov , a lawyer practising in Bilogirsk .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s arrest and pre-trial detention

About two weeks before the events in question the applicant had been promoted from the post of Deputy Head of Division in the State Bailiffs ’ Service of the Bilogirsk City Department of Justice to Deputy Head of the mentioned Department.

On 25 August 2011, at 6.20 p.m., she was arrested in her office following supposed bribe-taking.

On the same date the Bilogirsk City Prosecutor ’ s Office opened a criminal case in respect of bribery by the applicant in her capacity as a public official (« возбудить уголовное дело в отношении Аврамовой Татьяны Викторовны по факту получения взятки с использованием предоставленного ей служебного положения ... ») . It noted that she had extorted a bribe of 2,000 Ukrainian hryvnias (an equivalent of 170 euros ) from Mr K. in exchange for her undertaking to return 208 DVD discs earlier seized by the bailiffs ’ service from him.

On 26 August 2011, at 12.14 a.m., the investigator drew up a report about the applicant ’ s arrest. The fact that she had been caught in flagrate delicto and the risk of her absconding were indicated as the grounds for her arrest.

On the same date the applicant started to be represented by a lawyer who immediately challenged her arrest before the Bilogirsk City Court (“the Bilogirsk Court ”).

Still on 26 August 2011 the Bilogirsk Court extended the applicant ’ s arrest to eight days noting that more information was required to decide on the investigator ’ s application for her detention as a preventive measure pending trial. Namely, the judge noted that, in addition to the seriousness of the charge, the applicant ’ s age, health condition, family and financial situation, activities, the place of residence and other pertinent circumstances were to be considered.

On 27 and 30 August 2011 the applicant ’ s husband applied to the investigator for admission to the proceedings a s her defender in the capacity of a close relative. His applications were however rejected.

On 2 September 2011 the Bilogirsk Court remanded the applicant in custody (for two months). This decision was reasoned as follows:

“Having regard to the seriousness of the criminal offence of which [the applicant] is suspected, the concrete circumstances of the case, as well as the fact that [she] might put pressure on witnesses by using her official position, the court finds sufficient grounds to believe that, being at liberty, [the applicant] will try to evade from the investigation and the court or hinder the establishment of the truth.

The court has studied the defender ’ s submissions that [the applicant] has positive character references, no criminal record, is a mother of a minor child, and has no intention of evading from the investigation and trial. However, the case file does not contain any evidence showing that the [investigator ’ s] application for detention as a preventive measure pending trial is ungrounded.

No evidence has been submitted to show that [the applicant] cannot be detained in the SIZO conditions. [She] has confirmed at the hearing that she is not suffering from any life-threatening diseases. The medical documents about [the applicant ’ s] diagnoses of urinary stone disease, ureteral calculus and acute pyelonephritis , which have been submitted to the court, do not indicate incompatibility of her health condition with detention.

In the light of the foregoing, the court finds it necessary to allow the application and to choose pre-trial detention as a preventive measure in respect of [the applicant] being necessary for ensuring her adequate procedural behaviour, as well as for ensuring implementation of the procedural decisions in the case.”

The applicant ’ s complaint about the alleged unlawfulness of her arrest was rejected by the same ruling. The court noted that she had been arrested having been caught in flagrante delicto and that the arrest report was well ‑ reasoned.

On 20 September 2011 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) upheld the above ruling following a hearing with the participation of the applicant ’ s lawyer . It noted that the applicant was suspected of a serious offence committed in her capacity as a public official. If she was at liberty, she might put pressure on witnesses, seek evasion from the investigation and trial, or hinder the establishment of the truth. The appellate court further noted that there was no information that she could not be detained because of her health condition.

On 21 October 2011 the Bilogirsk Court rejected the applicant ’ s request for release subject to an undertaking not to abscond and extended the term of her detention to three months. It noted that the applicant was suspected of a serious offence, did not admit her guilt at all and was not in fact making any statements. Accordingly, there was a risk that she might try to influence witnesses while at liberty. Furthermore, the applicant ’ s participation was required in the investigative measures yet to be taken.

On 24 October 2011 the Higher Specialised Court for Civil and Criminal Cases (“the Higher Specialised Court ”) rejected the applicant ’ s request for leave to appeal in cassation against the courts ’ rulings of 2 and 20 September 2011.

On 10 November 2011 the Crimea Court of Appeal upheld the ruling of 21 October 2011. It noted that the extension of the applicant ’ s pre-trial detention was justified given, in particular, the large volume of investigative activities which yet remained to be conducted.

On 6 December 2011 the Higher Specialised Court rejected the applicant ’ s request for leave to appeal in cassation against the rulings of 21 October and 10 November 2011.

2. Material conditions of the applicant ’ s detention

(a) in the ITT

From 26 to 29 August and from 20 to 26 October 2011 the applicant was held in the Temporary Detention Facility of the Bilogirsk City Department of the Ministry of the Interior (“the ITT”).

According to her, the material conditions of her detention there were inadequate. The applicant noted, in particular, that there were no separate ITT s for women in Ukraine .

(b) in the SIZO

From 12 September to 20 October 2011 and from 26 October 2011 onwards the applicant has been held in the Simferopol SIZO.

On 17 October 2011 the applicant ’ s lawyer requested the SIZO administration to provide detailed information about the conditions of her detention.

On 28 October 2011 the SIZO governor provided the applicant ’ s lawyer with information about the conditions of her detention in the SIZO, following his enquiry in that regard. The letter described the conditions of the applicant ’ s detention as follows. Every cell was equipped with a metal bed for each inmate, a table and a bench, a shelf for foodstuffs ’ storage, a water tap, a separated toilet, a waste bin, and a wall clothes ’ hanger. Furthermore, each cell had natural and artificial (day and night) light, as well as natural and artificial ventilation. Bed linen was changed and inmates took shower (during forty minutes) on a weekly basis.

The applicant ’ s lawyer complained both to the Prosecutor ’ s Office of the Autonomous Republic of Crimea and to the Zaliznychnyy District Court of Simferopol about the allegedly inadequate conditions of the applicant ’ s detention in the SIZO. He submitted that the SIZO administration had failed to respond to his enquiry in a comprehensive manner. Namely, he complained that no information had been provided to him about: the total area of the cell and the number of inmates therein, the size of the window in the cell; the exact time of the artificial light switching on and off, the size of the shower area, the time and duration of outdoor exercise , etc.

3. The applicant ’ s health condition and medical care provided to her in detention

Before her detention the applicant had been registered for monitoring in the Bilogirsk City Hospital (“the Bilogirsk Hospital ”) on account of: ischemic heart disease, cardiac insufficiency, hypertension, cerebral atherosclerosis, discirculatory encephalopathy, chronic obstructive pulmonary disease and respiratory distress.

In the morning on 28 August 2011 her lawyer requested his client ’ s immediate hospitalisation following her complaint about the deterioration of her health, in particular, pain in kidneys.

In the evening on 29 August 2011 the applicant was hospitalised to the Bilogirsk Hospital where she underwent in-patient medical treatment on account of urinary stone disease until 12 September 2011.

On 7 October 2011 the investigator dealing with the applicant ’ s case allowed her request for a general medical examination.

On 20 and 21 October 2011 an ambulance was called for the applicant. The diagnoses given were as follows: biliary dyskinesia , chronic cholecystitis , and chronic pancreatitis.

On 22 October 2011 the applicant was examined by a surgeon, a generalist and an infection specialist of the Bilogirsk Hospital . Given her chronic conditions at the aggravation stage, the doctors recommended additional complex medical examination in a hospital environment.

On 24 October 2011 the SIZO governor wrote to the applicant ’ s lawyer, following his enquiry, that there was no modern equipment in the SIZO for heart, liver or kidney diagnostics.

On 25 October 2011 the Healthcare Department of the Bilogirsk City State Administration confirmed in its reply to another enquiry of the applicant ’ s lawyer concerning his client ’ s health condition that her examination in a hospital environment, as well as a special diet (no. 5), had been recommended to her.

According to the applicant, the recommended diet was not ensured for her in the SIZO.

On 28 October 2011 the applicant ’ s lawyer requested the SIZO administration to arrange for hospitalisation of his client.

On 8 November 2011 the SIZO replied that a permission of the prosecution authorities was required for the hospitalisation to be carried out. On the same date they applied to the Bilogirsk City Prosecutor ’ s Office for such permission, with reference to the medical recommendations of 22 October 2011. No reply was however received.

On 3 April and 13 June 2012 the applicant lodged with the Court a request under Rule 39 of the Rules of Court to ensure her adequate medical examination and treatment in an appropriate hospital.

On 3 July 2012 the Acting President of the Fifth Section to which the case has been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Ukraine, under Rule 39 of the Rules of Court, that they should bring about the medical examination which was asked for by the SIZO on 8 November 2011 (which in turn referred to the report of 22 October 2011) and then ensure that the applicant receive d treatment on the basis of the results. The application was also given priority treatment under Rule 41 of the Rules of Court.

On 11 July 2012 the applicant was hospitalised to the Dnipropetrovsk Regional Hospital for comprehensive medical examination pursuant to the recommendations of 22 October 2011.

On 13 July 2012 her examination was conducted. As a result, the following diagnoses were established: arterial hypertension triggered by urolithiasis (urinary stone disease), chronic pyelonephritis and supraventricular extrasystole . The doctors prescribed some medications to the applicant and recommended her supervision by a therapist (generalist) and an urologist, as well as monitoring of her arterial blood pressure. It was also noted that she should avoid low temperatures. Lastly, ultrasonic scanning and general urine analysis were recommended every six months.

On the same date the applicant was discharged from the hospital. According to her lawyer, who relied on his own research in Internet and the information from the hospital that its computer tomograph was not functioning, the applicant ’ s examination and the prescribed treatment could not be regarded as adequate.

On 8 November 2012 the Acting President of the Section deci ded to lift the interim measure previously indicated under Rule 39 of the Rules of Court. It was also decided to discontinue the priority treatment of the application under Rule 41.

4. Handcuffing in hospital

From 29 August to 6 September 2011, during the applicant ’ s in-patient treatment in Bilogirsk Hospital , she was handcuffed to her bed at all times and guarded by several armed police officers in her ward.

B. Relevant domestic law and practice

Article 368 § 3 of the Criminal Code reads as follows:

“Bribery in a large amount, or by an official holding a responsible post, or following a conspiracy by a group of persons, or committed repeatedly, or combined with extortion, shall be punishable with five to ten years ’ imprisonment with a ban from certain posts or activities for a term of up to three years and confiscation of property.”

The relevant provisions of the Code of Criminal Procedure (Articles 106, 148, 150 and 165-2) can be found in the judgment in the case of Lutsenko v. Ukraine, no. 6492/11 , § 42, 3 July 2012, not yet final).

The relevant international and domestic materials concerning conditions of detention can be found in the judgment in the case of Koktysh v. Ukraine , no. 43707/07 , §§ 39 and 41, 10 December 2009.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the alleged inadequacy of the conditions of her detention in the ITT and the SIZO, as well as the lack of prompt and adequate medical care available for her in detention. She also complains under the same heading about her handcuffing in hospital.

The applicant next complains under Article 5 §§ 1 and 3 of the Convention about the alleged arbitrariness and length of her pre-trial detention.

The applicant further complains under Article 5 § 2 that she was not promptly informed about the reasons for her arrest.

She also complains under Article 5 § 4 that there was no adequate judicial review of the lawfulness of her detention. She alleges, in particular, that the appellate court did not respond to her arguments. Additionally relying on Articles 6, 10, 13 and 17, she also complains that the equality of arms was not respected during court hearings given that she was under effect of medications. Furthermore, the applicant complains about the examination of the case by the appellate court in her absence, as well as the lack of a public hearing before the Higher Specialised Court .

She further complains under Article 5 § 5 that she has no enforceable right to compensation in respect of the alleged breaches of Article 5.

The applicant complains under Article 6 §§ 1 and 3 (c) about the alleged unfairness of the criminal proceedings against her, the absence of legal assistance at the initial stage of the investigation, the investigator ’ s refusal to admit her husband as her defender in the proceedings, and the alleged lack of independence and impartiality of the judges dealing with her case.

She also complains under Article 8 of the Convention about the alleged interference of the SIZO administration with her right to respect for correspondence.

The applicant next complains, with reference to Article 14, that she was escorted to court hearings by male, rather than female, guards.

Lastly, the applicant complains under Article 18 that her detention was applied for a purpose other than those envisaged by Article 5 .

THE LAW

1. The applicant complains under Article 3 of the Convention that she has been detained in poor conditions and has not been provided with prompt and adequate medical care in detention. She also complains that she was handcuffed during her treatment in Bilogirsk Hospital from 29 August to 6 September 2011 . Article 3 of the Convention relied on by the applicant reads as follows:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of th e s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 5 §§ 1 and 3 of the Convention that her detention has been unlawful and unreasonable. She also complains under Article 5 § 5 that she has no enforceable right to compensation in this regard.

Article 5, 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. ...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of th e s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant next complains that the real purpose of her detention differed from those envisaged by Article 5. She relied on Article 18 of the Convention which reads as follows:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of th e s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant also raises a number of complaints under Article 6 of the Convention as regards the fairness of the criminal proceedings against her. The Court notes that those proceedings are still pending. Accordingly, these complaints are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention.

5. The Court examined the remainder of the applicant ’ s complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court

Decides unanimously to adjourn the examination of the applicant ’ s complaints under Articles 3, 5 §§ 1, 3 and 5 of the Convention .

Decides by a majority to adjourn the examinati on of the applicant ’ s complaint under Articles 18 of the Convention.

Declares unanimously the remainder of the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President