FIFTH SECTION

DECISION

Application no . 14490/07 Vasyl Petrovych MARIYANCHUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 January 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 6 March 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vasyl Petrovych Mariyanchuk , is a Ukrainian national, who was born in 1967 and is currently detained in the Mykolayiv Pre-Trial Detention Centre, Ukraine . He is represented before the Court by Messrs A.P. Shelepa and Yu.V . Shkuta , lawyers practising in Zhytomyr and Kherson , Ukraine .

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

On various dates between 1999 and 2005 numerous sets of criminal proceedings were instituted against the applicant concerning setting up a criminal network, murders, kidnapping, banditism and other crimes committed between 1991 and 1999.

On 28 August 1999 the applicant was arrested in Hungary and extradited to Ukraine . Since that date he has been in pre-trial detention.

The applicant submitted several decisions of prosecutors and courts to place him in pre-trial detention and to prolong his pre-trial detention (decisions of 2 March 2000, 10 April 2000, 20 July 2000, 26 May 2005, 10 June 2005 and 6 July 2006 as well as two other decisions with unreadable dates).

On 3 July 2001 the criminal case against the applicant and his alleged accomplices was transferred to the court for consideration on the merits.

There is no information about the progression of events in 2002-2003.

The applicant submitted copies of two forensic-medical examinations of 6 and 23 June 2004 according to which he was suffering from various cardiodiseases and non-Hodgkin lymphoma. It was concluded that the applicant needed specialised treatment which could not be provided in the Odessa Pre-Trial Detention Centre no. 21, where the applicant was detained at the material time, and that the absence of specialist treatment could lead to his death. Apart from a copy of a letter of 24 May 2005 from the Head of the Kyiv Pre-Trial Detention Centre no. 13 (see below) the applicant did not submit any further information in this respect.

On 20 July 2004 the criminal proceedings against the applicant were disjoined from the case.

On 22 September 2004 the Odessa Regional Court of Appeal sentenced thirteen of the applicant ’ s alleged accomplices to various terms of imprisonment for banditism , intentional murders and other crimes.

On 23 May 2005 the Odessa Regional Court of Appeal remitted the criminal case against the applicant for additional investigation and ordered the applicant ’ s release since, inter alia , the length of his pre-trial detention had exceeded the 18 months ’ maximum length of pre-trial detention permissible under the domestic law. However, on the same day the applicant was again arrested by the General Prosecutor ’ s Office of Ukraine on new counts of racketeering and banditism .

By letter of 24 May 2005 the Head of the Kyiv Pre-Trial Detention Centre no. 13 informed the applicant ’ s lawyer, P., that the applicant “has serious illnesses and it is impossible to provide adequate treatment for these illnesses in the Pre-Trial Detention Centre”.

On 14 March 2006 the Supreme Court of Ukraine upheld the decision of 23 May 2005.

On 5 December 2006 the Prymorskiy District Court of Odessa examined the applicant ’ s complaints that the investigation officers in his cases had refused to join the criminal cases against him. In his view in this way it was concealed that the maximum permissible length of pre-trial detention was exceeded. The court rejected the applicant ’ s complaints on the ground that the issue of the applicant ’ s pre-trial detention should be decided by the court which considers his criminal case. On 27 February 2007 the Odessa Regional Court of Appeal quashed this decision and terminated the proceedings on the ground that the Prymorskiy District Court was not competent to consider this complaint.

According to the applicant, in 2007 he instituted proceedings in the court claiming compensation for non-pecuniary damage inflicted by his allegedly unlawful detention but to no avail. In particular, on 16 April 2007 the Prymorskiy District Court of Odessa refused to institute proceedings on the applicant ’ s complaint and on 13 March 2007 another complaint was returned to the applicant since his lawyer did not submit a power of attorney. On 10 July 2007 the Odessa Regional Court of Appeal quashed the decision of 16 April 2007 and remitted the case for a fresh consideration.

In July 2007 the applicant lodged a new claim against the State of Ukraine claiming damages inflicted on him by allegedly unlawful criminal proceedings against him, unlawful arrest and detention between 1999 and 23 May 2005. On 3 December 2009 the Prymorskyy District Court rejected this claim since it had not been established that his arrest and detention had been unlawful. On 4 September 2012 the Odessa Regional Court of Appeal upheld this decision. On 12 November 2012 the Higher Specialised Court of Ukraine in Criminal and Civil Cases rejected the applicant ’ s request for leave for appeal in cassation.

In his application form of 24 June 2007 the applicant stated that he was in solitary confinement, that his detention was not compatible with his state of health, and that he was under video surveillance and had no family visits without giving any further details.

On 2 June 2008 the Supreme Court of Ukraine transferred the applicant ’ s criminal case to the Mykolayiv Regional Court of Appeal.

On 24 February 2009 the applicant was placed in the Mykolayiv Pre ‑ Trial Detention Centre. There the applicant was placed in a basement cell. Persons convicted to life imprisonment were detained in neighbouring cells. The applicant complains that 1.5 metres outside his window there is a dog that is “kept in anti-sanitary conditions”. A medical wing for patients with infectious diseases is situated above the applicant ’ s cell. The applicant considers that all of the above endangers his life since he may contract tuberculosis or another infection disease. He also states that there is no sun light in the recreation yard of the detention facility since it is situated in the shade.

Following the request from the Registry, in 2012 the applicant also submitted some medical documents related to the period between April 2010 and April 2012. In particular, according to a letter of 31 May 2011 of Kherson Regional Hospital addressed to the applicant ’ s representative, Mr Shkuta , between 20 April and 13 May 2010 the applicant stayed in the Hospital. He was diagnosed with cerebrovascular accident, high blood pressure, chronic pyelonephritis , duodenal ulcer and other various diseases. It was stated that the applicant ’ s transportation to court hearings three times a week starting from 14 May 2010 could have had “negative consequences for his health including lethal outcome”.

The applicant further submitted copies of his medical file from February – April 2012. During this period the applicant was examined nearly daily, sometimes several times per day and sometimes by an outside specialist. The applicant mainly complained about tooth ache, head ache, weakness and nausea. He was prescribed treatment.

The criminal proceedings against the applicant are still pending.

COMPLAINTS

The applicant complains under Article 5 § 5 of the Convention that he was unable to receive compensation for his unlawful pre-trial detention between 28 August 1999 and 23 May 2005. He also alleged violation of Article 6 of the Convention since the courts failed to consider his compensation claim.

The applicant complains that the decisions of 23 and 26 May 2005 to detain him were unlawful and that he could not claim compensation for this detention. He invokes Articles 5 § 5 and 6 of the Convention.

The applicant complains about unfair hearing in his criminal case. He invokes Article 6 § 3 (b and c) of the Convention.

The applicant complains under Article 5 § 1 of the Convention about his unlawful detention, in particular, between 28 August 1999 and 3 July 2001. He further complains that his lengthy pre-trial detention is unlawful.

The applicant complains about the length of his pre-trial detention and the length of his criminal proceedings.

The applicant finally complains under Article 3 of the Convention about the conditions of his detention and the incompatibility of detention with his state of health.

THE LAW

1. The applicant complains that his pre-trial detention and the criminal proceedings against him are too lengthy. These complaints fell to be considered under Articles 5 § 3 and 6 § 1 of the Convention, which provide, in so far as relevant, as follows:

Article 5

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

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 the Court , to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant ’ s complaints and considers that, in the light of all the materials in its possession and insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

In particular, the Court considers that the applicant ’ s complaint about unlawful decisions to arrest him and to place him in pre-trial detention is unsubstantiated since he had failed to provide a clear picture of the events in question and to specify factual and legal circumstances in which the decisions he refers to were taken.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint s concerning length of pre-trial detention and length of criminal proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President