FIFTH SECTION

DECISION

Application no . 31898/06 Ivan Vasilyevich TARAN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 May 2012 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Ganna Yudkivska , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 27 July 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ivan Vasilyevich Taran , is a Ukrainian national who was born in 1980 and lives in Sevastopol . He is repres ented before the Court by Mr V. Suk , a lawyer practising in Sevastopol .

A. The circumstances of the case

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

1. Incident of 29 June 2005 and the ensuing proceedings

On the evening of 29 June 2005 the applicant was attacked in his apartment by G., his relative. G. was armed with a knife. In the course of the fight the applicant snatched the knife and stabbed G., causing his death. The applicant called the police and reported the incident.

That night criminal proceedings were instituted and the applicant was arrested. He was charged with murder.

On 1 July 2005 the Nakhimivskyy District Court of Sevastopol (“the district court”) ordered the applicant ’ s pre-trial detention for two months as a preventive measure. According to the applicant, the hearing was held in his absence. Allegedly, on that date the applicant contacted his lawyer for the first time since being arrested.

Between 8 July and 2 August 2005 the applicant ’ s lawyer could not represent him in the proceedings as the investigator allegedly substituted him with another lawyer against the applicant ’ s will.

On 26 August 2005 the investigator applied to the court seeking the extension of the applicant ’ s pre-trial detention to three months.

On the same day the district court extended the applicant ’ s pre-trial detention to three months. In justifying the preventive measure, the district court referred to the gravity of the charges levelled against the applicant and the considerable number of investigative actions that had to be taken in the case. On 7 September 2005 the Sevastopol Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant and upheld the district court ’ s decision. It found that the district court had properly reasoned the application of the preventive measure while the applicant ’ s contention that he should be released on health grounds had not been supported by any evidence. Both hearings were attended by the prosecutor and the applicant ’ s lawyer. The applicant was absent.

On 29 September 2005 the investigator applied to the court seeking the extension of the applicant ’ s pre-trial detention to four months.

On the same day the district court extended the applicant ’ s pre-trial detention to four months. In justifying the extension of the preventive measure, the district court referred to the gravity of the charges levelled against the applicant and the considerable number of investigative actions that had to be taken in the case. The hearing was attended by the prosecutor while the applicant and his lawyer were absent.

On 13 October 2005 the Court of Appeal dismissed an appeal lodged by the applicant and upheld the district court ’ s decision, finding that it had given sufficient reasoning for its conclusions. That hearing was held in the presence of the prosecutor and the applicant ’ s lawyer. The applicant was absent.

On 27 October 2005 the investigator applied to the Court of Appeal seeking the extension of the applicant ’ s pre-trial detention to five months.

On 28 October 2005 the Court of Appeal extended the applicant ’ s pre-trial detention to five months. In doing so it relied on the gravity of the charges and the necessity to finalise the investigation. The hearing was attended by the prosecutor and the applicant ’ s lawyer. The applicant was absent. The decision was not subject to appeal.

On 29 November 2005 the criminal case file was referred to the district court for the applicant to be tried.

On 30 November 2005 the applicant lodged a claim under the Code of Administrative Justice (“the CAJ”) alleging that the prosecutor had failed to release him from custody after 29 November 2005. The applicant contended that after 29 November 2005 his detention had not been based on any court decision and was therefore unlawful.

On 23 December 2005 the Leninskiy District Court of Sevastopol considered the applicant ’ s claim under the CAJ in the absence of the parties. It found that on 29 November 2006 the case had been referred to the court and the prosecutor had not been empowered to decide on the applicant ’ s release. The applicant appealed against that judgment.

On 29 December 2005 the district court, conducting a preliminary hearing in the applicant ’ s criminal case, found that the case should be remitted for additional investigation. It further ordered that the preventive measure in respect of the applicant be left unchanged. According to the applicant, on the hearing day the judge informally discussed the case with the prosecutor and expressed an opinion that the applicant had been guilty of the crime.

The applicant appealed against the decision of 29 December 2005 but his appeal was rejected as time-barred.

On 17 and 23 February 2006 the district court suspended the applicant ’ s lawyer, as well as his brother and mother, who were also acting as his representatives, from the criminal case after finding that they had delayed the proceedings by abusing their right to study the case file. On an unspecified date they were admitted to the proceedings again.

On 28 February 2006 the additional investigation was completed and the case was again referred to the district court for the applicant to be tried.

On 30 March 2006 the Court of Appeal dismissed an appeal lodged by the applicant against the judgment of 23 December 2005, finding that the judgment was lawful and substantiated. The hearing was held in the presence of the applicant ’ s lawyer. Having received the text of the decision, the applicant appealed against it on points of law.

On 31 March 2006 the district court committed the applicant to trial. It also held that the preventive measure in the applicant ’ s respect should remain unchanged.

On 19 April and 10 May 2006 the district court allowed the applicant ’ s request to study the case file. For this purpose the applicant was given nine days and three days respectively.

On 24 July 2006 the district court suspended the applicant ’ s lawyer from the trial for inappropriate behaviour in a courtroom and abuse of his procedural rights (whispering to other defence counsel, arguing with the presiding judge and protracting the proceedings). On an unspecified date he was admitted to the proceedings again.

On 17 October 2006 the applicant made a request to the district court for his release from custody claiming that his detention had not been based on a reasoned court decision. The request was ignored.

On 1 March and 16 April 2007, and 1 August 2008 the applicant made similar requests to the district court for his release from custody. On the same days the district court rejected the requests, noting that the preventive measure had been applied lawfully and there were no grounds for changing it.

On 16 May 2007 the Higher Administrative Court, sitting in private, upheld the decisions of 23 December 2005 and 30 March 2005 and dismissed the applicant ’ s appeal on points of law as unfounded.

On 19 November 2010 the district court found the applicant guilty of murder and sentenced him to seven years ’ imprisonment. The applicant appealed and made another request for release from custody.

On 12 April 2011 the Court of Appeal quashed that judgment and remitted the case for additional investigation. It also allowed the applicant ’ s release request, noting that after 29 November 2005 the applicant had been detained without a court order; subsequently, the extension of his detention had not been properly reasoned and no time-limit for his detention had been specified by the court. In granting the applicant ’ s request the Court of Appeal also had regard to the overall length of the applicant ’ s detention. It released the applicant subject to a written obligation not to abscond.

The proceedings are pending.

2. Conditions of detention and other related issues

According to the applicant, during the initial period of his detention he was not allowed to receive any parcels from relatives and was not given permission to see them.

Following the court decision of 1 July 2005 the applicant was placed in Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”). In order to participate in the investigative actions and court hearings, the applicant was escorted to the Sevastopol Temporary Detention Centre (“the Sevastopol ITT”) for several days at a time. According to the official reply from the Prison Department of the Autonomous Republic of Crimea, between 2005 and 2009 the applicant was escorted to the Sevastopol ITT on twenty-seven occasions. According to the applicant, during the whole period of his pre-trial detention he was transported to the Sevastopol ITT on forty-five occasions. The distance between Simferopol and Sevastopol is about 80 kilometres.

According to the applicant, his trip to Sevastopol took about twelve hours and the trip back to Simferopol took from twenty to twenty-four hours. While the transportation itself took about two hours, for the rest of the time he had to remain in a special metal cage of the vehicle measuring 0.5 sq. m. During the trip the applicant was not given food or water and he could not sleep. The cages were dirty, cold in winter and hot in summer, and they were not properly ventilated.

According to the applicant, he was not provided with appropriate medical care in the Simferopol SIZO and the food was inadequate.

As regards the Sevastopol ITT, the applicant was held in overcrowded cells: during the first years of his detention he was held in cells equipped with six bunks while the overall number of detainees ranged from twenty-five to thirty persons. In the last two years of his detention the number of detainees decreased to fifteen persons per cell, which were still equipped with six bunks.

B. Relevant domestic law

The relevant provisions of the Constitution and the Code of Criminal Procedure (“the CCP”) can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 57-59, 28 October 2010).

According to Article 162 of the Code of Administrative Justice, the administrative court, should it find an administrative claim substantiated, may inter alia declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. The administrative court may further take the other decision which would guarantee the protection of human and citizens ’ rights, the rights and interests of other participants of public legal relations from the violations committed by public authorities.

The relevant provisions of the Law “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor ’ s offices and courts” of 1 December 1994 read as follows:

Section 1

“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:

1) unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizen ’ s rights; ...”

Section 2

“The right to compensation for damage in the amount and in accordance with the procedure established by this Law shall arise in the event of:

1) acquittal by a court;

2) the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti , or for lack of evidence of the accused ’ s participation in the commission of the crime;

3) refusal to initiate criminal proceedings or terminate criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this section;

4) termination of proceedings for an administrative offence.

... ”

Following the amendments to this Law of 1 December 2005, the list of situations where the right to compensation would arise was supplemented with the following paragraph:

“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”.

C. Relevant international and domestic materials concerning conditions of detention and transportation

Details on such materials can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007 ) and Koktysh v. Ukraine (no. 43707/07 , §§ 39-42, 10 December 2009).

COMPLAINTS

1. The applicant complained that the conditions of his detention in the Sevastopol ITT had been contrary to Article 3 of the Convention.

2. The applicant complained that the conditions of his transportation between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article 3 of the Convention.

3. The appli cant complained under Article 5 §§ 1 and 3 of the Convention that between August and October 2005 his pre-trial detention had not been lawfully extended because the investigator ’ s requests to this effect had been submitted outside the time-limits provided for in Article 165-3 of the CCP and the relevant court hearings had been held in his absence.

4. The appli cant complained under Article 5 § 1 that his detention after 29 November 2005 had not been lawful as it had not been based on a court decision; subsequently, the court decisions taken in respect of his preventive measure had been unreasoned and thus unlawful.

5. The applicant complained that the overall length of his pre-trial detention had been excessive.

6. The applicant complained under Articles 5 § 4, 6 § 1 and 13 of the Convention that the length of the administrative proceedings, in which he had challenged the lawfulness of his detention after 29 November 2005, had not been reasonable; the courts had not been independent and impartial, they had failed to hear the applicant in person and had not considered his claim properly.

7. The applicant complained that he could not claim compensation in respect of his unlawful pre-trial detention, contrary to Article 5 § 5 of the Convention.

8. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy.

9. The applicant complained under Article 3 of the Convention that during the investigation of the case he had been subjected to psychological pressure by the authorities.

10. The applicant complained that the conditions of his detention in the Simferopol SIZO had been contrary to Article 3 of the Convention.

11. The applicant complained under Article 5 § 1 of the Convention that he had been arrested for acts which did not constitute a crime under domestic law.

12. The applicant complained under Article 5 § 3 of the Convention that on 1 July 2005 the court had ordered his pre-trial detention in his absence.

13. The applicant complained that between August and October 2005 the lawfulness of his detention had not been reviewed in accordance with Article 5 § 4 of the Convention.

14. The applicant complained under Article 5 §§ 1 and 3 of the Convention that on 28 October 2005 the Court of Appeal had wrongly extended his pre-trial detention as it had failed to apply Article 165-3 § 3 of the CCP which, in the applicant ’ s opinion, obliged the authorities to release him.

15. The applicant complained under Articles 5 § 4 and 13 of the Convention that he had had no effective remedy against the decision of 28 October 2005 of the Court of Appeal by which his pre-trial detention had been extended.

16. The applicant complained under Article 6 § 1 of the Convention that the courts had not acted independently and impartially when considering the investigator ’ s requests for applying or extending the preventive measure in his respect.

17. The applicant complained under Article 6 § 1 of the Convention that the courts dealing with his criminal case had not been fair, independent and impartial.

18. The applicant complained under Article 6 §§ 1 and 3 (b) and Article 13 of the Convention that he had not been given adequate time and facilities to study the case file before and during the trial.

19. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had not been given access to a lawyer at the initial stage of the proceedings.

20. The applicant complained under Article 6 §§ 1 and 3 (c) and Article 13 of the Convention that during the criminal proceedings against him his defence counsel had been prevented from effective participation in the case on several occasions.

21. The applicant complained under Article 6 §§ 1 and 2 of the Convention that on 29 December 2005 the judge had informally discussed the applicant ’ s case with the prosecutor and had expressed an opinion as to the applicant ’ s guilt.

22. The applicant complained that the findings made by the court in its decision of 29 December 2005 had been contrary to Article 6 § 2 of the Convention.

23. The applicant complained under Articles 6 § 1 and 7 of the Convention that he had been prosecuted for acts which did not constitute a crime under domestic law.

24. The applicant complained that during his pre-trial detention he had not been allowed to receive parcels from his relatives or receive family visits.

THE LAW

1. The applicant complained that the conditions of his detention in the Sevastopol ITT and the conditions of his transportation between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article 3 of the Convention.

Article 3 of the Convention provides 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 these complaints 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 complained under Article 5 §§ 1 and 3 of the Convention that between August and October 2005 his pre-trial detention had not been lawfully extended because the investigator ’ s requests to this effect had been submitted outside the time-limits provided for in Article 165-3 of the CCP and the relevant court hearings had been held in his absence. He further complained under Article 5 § 1 that his detention after 29 November 2005 had not been lawful as it had not been based on a court decision; subsequently, the court decisions taken in respect of his preventive measure had been unreasoned and thus unlawful.

The Court decided that these complaints should be examined under Article 5 § 1 of the Convention, which provides, 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; ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the present complaints 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.

3. The applicant complained that the overall length of his pre-trial detention had been excessive.

The applicant did not refer to any Convention provision. The Court finds it appropriate to examine the issue under Article 5 § 3 of the Convention, which provides, in so far as relevant, as follows:

“3. 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

4. The applicant complained under Articles 5 § 4, 6 § 1 and 13 of the Convention that the length of the administrative proceedings, in which he had challenged the lawfulness of his detention after 29 November 2005, had not been reasonable; the courts had not been independent and impartial; they had failed to hear the applicant in person; and they had not considered his claim properly.

The Court decided that this complaint should be examined under Article 5 § 4 of the Convention, which provides as follows:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

5. The applicant complained that he could not claim compensation in respect of his unlawful pre-trial detention. He relied on Article 5 § 5 of the Convention, which reads as follows:

“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 this complaint 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.

6. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy.

The relevant part of Article 6 § 1 of the Convention reads as follows:

“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 this complaint 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.

7. 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 in so far 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.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints under Article 3 of the Convention (concerning the conditions of his detention in the Sevastopol ITT and the conditions of transportation between the Simferopol SIZO and the Sevastopol ITT), Article 5 § 1 of the Convention (concerning the lawfulness of the applicant ’ s pre-trial detention based on court decisions adopted between August and October 2005, and the lawfulness of his pre-trial detention after 29 November 2005), Article 5 § 3 of the Convention (concerning the length of the applicant ’ s pre-trial detention), Articles 5 § 4 and 6 § 1 of the Convention (concerning the applicant ’ s action in the administrative courts), Article 5 § 5 of the Convention (concerning the right to compensation), and Article 6 § 1 of the Convention (concerning the length of the criminal proceedings);

Declares the remainder of the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President