FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5797/05 by Vladimir Dmitriyevich RUDENKO against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 22 September 2009 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek, Section Registrar .

Having regard to the above application lodged on 21 January 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vladimir Dmitriyevich Rudenko, is a Ukrainian national who was born in 1947 and lives in Sevastopol . He is a retired law- enforcement officer.

A. The circumstances of the case

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

1. The pre-trial investigation

On 29 August 2002 the applicant was charged with illegal drug possession and attempted drug smuggling.

In August and September 2002 the police opened criminal files against some other persons on similar charges.

On 12 May 2003 the charges against the applicant were extended to participation in a criminal organisation , u nlawful production, possession and smuggling of drugs and drug precursors by an organi s ed group .

In August 2003 the applicant was committed for trial.

2. The trial

On 29 August 2003 the Leninskyy District Court of Sevastopol (“the Leninskyy court”) held a preparatory hearing. It held five further hearings during 2003 and twenty-one hearings during 2004.

According to a letter of the Sevastopol City Council of Judges of 31 March 2005 in reply to the applicant ’ s complaint about the length of the trial, its duration was caused by: a significant number of advocates (seven), some of whom had joined the examination of the case late and required additional time to study the case-file; breakdown of a tape recorder after a part of the trial had been recorded on it; expiry of the office term of the presiding judge and reassignment of the case to a different judge.

According to the most recent update from the applicant of February 2008, the case remains pending before the first-instance court.

3. The applicant ’ s detention

(a) During the pre-trial investigation

On 29 August 2002 the applicant was detained by the Sevastopol Department of the State Security Service on suspicion of illegal drug possession and attempted drug smuggling. According to the arrest report, he had been seen on 27 August 2002 at a cross-border check attempting to transport 1.5 kilograms of fentanyl (an opiate) hidden in his car.

On 31 August 2002 the investigator introduced with the Leninskyy court a request for the applicant to be remand ed in custody as a preventive measure during the investigation.

On 5 September 2002 the Leninskyy court, following a hearing with the participation of the applicant ’ s lawyer, allowed the above request and remanded the applicant in custody. It examined the lawyer ’ s arguments about the applicant ’ s frail health ( second-degree hypertension and cerebral atherosclerosis), but found no indication that his state was incompatible with detention. On the other hand, the court noted that if left at liberty the applicant might abscond, obstruct justice or reoffend.

On 25 October 2002 the Leninskyy court, after a hearing held with participation of the prosecutor, but in the absence of the applicant or his lawyer, extended the detention to four months at the investigator ’ s request . The court justified the extension with the necessity to undertake numerous investigative measures and the potential risk of the applicant ’ s absconding. The ruling contained a note that it could be appealed against within three days of its pronouncement.

On 23 December 2002 the Sevastopol City Court of Appeal (“the Sevastopol court”), following a hearing, also held in the absence of the applicant or his lawyer, but with the participation of the prosecutor, allowed the prosecutor ’ s request for the extension of the detention to six months. It justified it with the investigative activities which still remained to be completed, the seriousness of the charges against the applicant and the inherent risk of his absconding. This ruling of the court was final and could not be appealed.

On 21 February 2003 the Sevastopol court , following a hearing with the participation of the applicant ’ s lawyer, extended the applicant ’ s detention to nine months (till 28 May 2003) at the investigator ’ s request . The court based its decision on the same arguments as before. It rejected the lawyer ’ s request for the applicant ’ s release on health grounds, referring to a lack of evidence that his state of health was incompatible with detention. The ruling was final and could not be appealed.

( b) During the judicial proceedings

On 29 August 2003 the applicant requested the Leninskyy court , during a preparatory hearing before the trial, for his release under an undertaking not to abscond. He argued that his health was too frail and submitted medical documents in substantiation. Furthermore, the applicant noted that he had a family and a permanent place of residence , was of rather advanced age, had only positive character references and no previous criminal record. According to the applicant, the court did not consider the issue of his detention at all.

The applicant complained to the prosecution authorities on a number of occasions about the alleged unlawfulness of his continuous detention after 28 May 2003, referring to the fact that it was not covered by any decision. His complaints were forwarded to the Leninskyy court , where they allegedly remained without response.

On 25 May 2005 the applicant inquired with the Leninskyy court as to the legal basis for his continuous detention since 28 May 2003. According to him, he received no reply.

On 15 July 2005 the applicant requested the Sevastopol court for review of the lawfulness of his detention since 28 May 2003. He noted that after the mentioned date his detention was not covered by any court decision which he could appeal in compliance with the criminal procedure legislation.

On 20 July 2005 the Sevastopol court forwarded the applicant ’ s request to the Leninskyy court “for a procedural decision to be taken” .

On 22 December 2005 the Leninskyy court released the applicant under an undertaking not to abscond, at his lawyer ’ s request. The court established that the applicant ’ s health had deteriorated in detention. It also took note of the fact that his wife was disabled and needed his support. Moreover, the court noted that the applicant had participated in military operations while serving in law-enforcement bodies, for which he had received numerous governmental awards. It also indicated in its ruling that there was no indication that he would attempt to obstruct justice or abscond if released.

4. The applicant ’ s state of health and medical treatment

Since 1975 the applicant has been suffering from hypertension and cerebral atherosclerosis.

Since 2000 he has had second-degree hypertension. According to a note issued by Sevastopol Polyclinic no. 2 on an unspecified date at the investigator ’ s request, from 2000 onwards the applicant had often required urgent medical attention on account of his high blood pressure.

According to a note issued by the Sevastopol ITT administration on 12 December 2002 at the request of the applicant ’ s lawyer, the doctor of the ITT had examined the applicant at his request and had provided him with medical assistance for hypertension ten times between September and December 2002.

On 21 December 2002 the applicant, at his own request, underwent a medical examination by a leading cardiologist in Sevastopol City Hospital no. 1. (“hospital no. 1”). According to the applicant, the doctor concluded that he was suffering from a hypertension crisis and required immediate hospitali s ation. He was provided with first -aid medical assistance and delivered back to the ITT.

As the applicant also complained of stomach pain, on an unspecified date he was examined by an endoscopist, who did not find any pathology.

On 17 January 2003 the applicant was examined in Sevastopol Hospital no. 9. (“hospital no. 9”). The medical examination found that he was suffer ing from cerebral hypertension of the second degree, ischaemic heart disease, and atherosclerotic cardiosclerosis with heart rhythm disturbances. The doctor allegedly told the investigator about the applicant ’ s urgent need of medical treatment. The applicant was however transported back to the ITT.

On 30 January 2003 the applicant was delivered by an ambulance to hospital no. 1, where he underwent some treatment and was transferred back to the ITT.

On 3 March 2003 the applicant complained to the Sevastopol prosecutor , alle ging lack of medical assistance .

According to the applicant, from the beginning of 2003 his hearing started to deteriorate considerably. On 17 May 2004 an otologist examined and diagnosed him with both-sided acute sensorineural hearing loss and prescribed medications.

On 29 August 2003 the Leninskyy court ordered the applicant ’ s medical examination in the ITT by specialists of hospital no. 1; this apparently took place.

On 19 July 2004 the applicant unsuccessfully requested the Leninskyy court to order an expert medical examination with a view to establishing whether he was fit for detention.

According to a note issued by the local ambulance station at the applicant ’ s request on 3 August 2005, during the period from 1 January to 1 August 2005, an ambulance was called for him to the Sevastopol ITT seventeen times. Every time the applicant was diagnosed with second-degree hypertension and provided with urgent medical assistance. On three occasions the doctors explicitly recommended his treatment by a therapist.

On 16 December 2005 the applicant underwent medical examination in hospital no. 1. The doctors diagnosed him with third-degree hypertension at the crisis stage, ischaemic heart disease, coronary sclerosis and cardiosclerosis and recommended his urgent hospitalisation.

In its ruling of 22 December 2005 ordering the applicant ’ s release under an undertaking not to abscond, the Leninskyy court noted that the applicant ’ s health had deteriorated during the period of his detention.

After his release, from 29 December 2005 to 20 January 2006, the applicant underwent inpatient treatment in the neurology unit of h ospital no. 1.

On 8 February 2006 he was examined by a group of disability experts of the Sevastopol City Medical and Sociological Expert Commission and recognised as falling into the “ third category ” of invalidity (the mildest) indefinitely on the grounds of his “general state of health”.

5. The action for damages brought by the applicant

On 21 May 2005 the applicant brought an action for damages against the State, alleging that he had been criminally persecuted and detained unlawfully and for an unreasonably long period of time.

On 3 June 2005 the Leninskyy court stayed the examination of the claim, having invited the applicant to remedy certain shortcomings in it by 17 June 2005.

On 17 June 2005 the Leninskyy court returned the claim to the applicant, finding that it had not been lodged in compliance with the procedural requirements. According to the applicant, this ruling was sent to him on 25 June and received on 26 June 2005.

On 21 June 2005 the applicant challenged the 3 June 2005 ruling with the Sevastopol court.

On 8 July 2005 he requested assistance from the Sevastopol court in collecting documentary evidence in substantiation of his claim.

On the same date he appealed against the ruling of 17 June 2005.

On 29 September 2005 the Sevastopol court allowed the applicant ’ s appeal, having quashed the ruling of the Leninskyy court of 17 June 2005 and remitted the case back to it for examination.

On 17 March 2006 the Leninskyy court rejected the applicant ’ s claim, finding that there were no legal grounds for him to claim compensation for his allegedly unlawful detention and criminal persecution, as his trial was still under way.

On 27 July 2006 the Sevastopol court upheld the above ruling.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure (CCP) are to be found in the judgments in the following cases: Nevmerzhitsky v. Ukraine , no. 54825/00, § 54, ECHR 2005 ‑ II (extracts) ; Kucheruk v. Ukraine , no. 2570/04, §§ 67-69 , ECHR 2007 ‑ ... ; and Sergey Volosyuk v. Ukraine , no. 1291/03, §§ 24-25, 12 March 2009.

COMPLAINTS

Relying on Article 2 of the Convention, t he applicant complained that he had not received adequate m edical assistance in detention .

The applicant also complained , with a general reference to Article 5 of the Convention, about the overall length of his pre-trial detention, that it had been unlawful between 28 May 2003 and 22 December 2005 and that judicial review had not been possible.

He further complained under Article 6 § 1 of the Convention that the criminal proceedings in his case were both unfair and too long .

The applicant also complain ed, relying on Article 7, that he had been punished for what did not constitute a crime under the legislation in force at the material time.

Finally, the applicant complain ed under Article 13 that the domestic authorities had failed to duly address his complaints (which concerned the lawfulness and length of his detention, as well as the fairness and length of the criminal proceedings against him).

THE LAW

1. The applicant complained , with a reference to Article 2 of the Convention, that the authorities had failed to provide him with the required medical treatment in detention, which had resulted in considerable deterioration of his health. The Court considers it appropriate to examine this complaint under Article 3 of the Convention, which 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 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 also complained that his pre-trial detention had been excessively long, that he had been unlawfully detained between 28 May 2003 and 22 December 2005, and that the domestic courts had failed to review the lawfulness of his detention, having allegedly ignored his complaints and requests for release.

Although he relied on Articles 5 and 13 of the Convention, these complaints fall to be examined solely under Article 5, with its paragraph 4 being a lex specialis in relation to the more general requirements of Article 13 concerning the alleged inability of the applicant to effectively challenge his detention (see Miroshnichenko and Goryunenko v. Ukraine (dec.), no. 34211/04, 3 April 2007). Article 5 of the Convention read s , 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; ...

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.

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 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.

3 . The applicant further complained that the criminal proceedings against him had been excessively long and that the domestic authorities had failed to duly address his complaints in that respect. He relied on Articles 6 § 1 and 13 of the Convention , which provides , so far as relevant, as follows :

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

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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

4. The applicant also complained under Articles 6 and 13 of the Convention that the proceedings were unfair. 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. Moreover, invoking Article 7 of the Convention, he alleged that he had been criminally persecuted for a crime which had not existed in the law in force at the material time. The Court notes that this complaint is also premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for the same reason as stated above.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the alleged inadequacy of medical assistance in custody, the over all length of his detention, its lawfulness and lack of judicial review of its lawfulness for the period from 2 8 May 200 3 to 22 December 2005 , as well as his complaint s concerning the length of the cr iminal proceedings in his case and a lack of effective domestic remedies in that regard.

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President