FIFTH SECTION

CASE OF KLEUTIN v. UKRAINE

( Application no. 5911/05 )

JUDGMENT

STRASBOURG

23 June 2016

FINAL

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kleutin v. Ukraine ,

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

Angelika Nußberger, President, André Potocki, Faris Vehabović, Síofra O ’ Leary, Carlo Ranzoni, Mārtiņš Mits, judges, Sergiy Goncharenko, ad hoc judge, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 31 May 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

2 . The applicant was represented by Mr E. Markov, a lawyer practising in Strasbourg. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice .

3 . The applicant alleged that he had been beaten by the police whilst being apprehen ded and that there had been no effective investigat ion into this fact. He also stated that the conditions of his detention in Ode s a SIZO were inhuman and degrading . He further complained about his unlawful arrest and detention on remand as well as about the authorities ’ failure to conduct an effective judicial review of the lawfulness of his detention.

4 . On 26 May 2014 the application was communicated to the Government . Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fift h Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1979 and lives in Odesa .

A. Criminal proceedings against the applicant

6 . On 22 January 2004 , on the basis of a pre-investigation inquiry , criminal proceedings were instituted against the applicant and two other persons in connection with a robbery committed th e night before .

7 . On the same day, the investigator arrested the applicant and drew up an arrest report, the relevant parts of which read as follows:

“On 22 January 2004 at 1 . 40 p.m. , investigator Ya., in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained Kleutin Denis Vasyliyovych ... on suspicion of commission of the crime provided for by Article 186 of the Criminal Code of Ukraine . ...”

8 . On 23 January 200 4 the investigator applied to the Pr y morsky District Court of Odesa (“the District Court”) with a request to place the applicant in pre-trial detention. He noted that the applicant had been suspected in having committed a serious crime and, if released, might abscond in order to avoid the investigation and prevent the establishment of the truth in the case.

9 . On 24 January 2004 , in the presence of the prosecutor and in the absence of the applicant, the District Court remanded the applicant in custody with out setting its maximum duration. The court ’ s order referred to the investigator ’ s statements as to the gravity of charges, the applicant ’ s previous convictions, and the risk of his committing another crime, abscond ing , impair ing the establishment of truth and obstruct ing the course of justice. T he applicant did not appeal against this decision .

10 . On 18 March 2004 , in the presence of the prosecutor and in the absence of the applicant, the District Court allowed the investigator ’ s request and extended the applicant ’ s detention for one month in view of the need to carry out certain investigative steps to complete the investigation . The c ourt found that the arguments of the investigator in this respect were reasonable.

11 . On 8 April 2004 the investigation was completed and the criminal case was sent for trial.

12 . On 5 May 2004 , in the committal hearings, the District Court made no ruling in respect of the applicant ’ s further detention . It noted that no applica tions had been lodged by the parties to the proceedings and found “no violations of the requirements of Article 237 of the C ode of Criminal Procedure of Ukraine (“the CCP”) in the course of the preliminary investigation of the case ”.

13 . On 18 June 2004 the District Court remitted the criminal case for additional investigation , without addressing the issue of applicant ’ s extended detention.

14 . On 18 April 2005 the District Court again remitted the criminal case for additional investigation . It made no ruling in respect of the applicant ’ s extended detention.

15 . On 13 August 2005 the additional investigation was completed and the case was sent to the District Court for tri a l .

16 . On 18 August 2005 the applicant requested that the District Court change the preventive measure to an obligation not to abscond.

17 . On 15 September 2005 , in the committal hearings, the District Court maintained the applicant ’ s detention without giving any reason or setting any time-limits.

18 . On 7 November 2005, in Ju ne, July and on 16 October 2006 and again on 6 March 2007 , the applicant applied to the District Court in writing to change the preventive measure in to a non-custodial one . In his request of July 2006 , he argued , inter alia , that he did not represent a danger to society, had a registered place of residence and was about to start a new job at the time when he was arrested. In reply to the applicant ’ s request of 7 November 2005, the court informed the applicant that all petitions should be “ lodged and examined at a hearing ” .

19 . On 8 June 2007 the applicant was found guilty of premeditated robbery as part of a group and of involving of minors in a crime and was sentenced to five years ’ imprisonment.

20 . On 15 November 2007 the Odesa Regional Court of Appeal dismissed an appeal lodged by the applicant .

21 . On 2 June 2008 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal on points of law .

22 . On 22 January 2009 the applicant f i ni shed serving his sentence and was released.

B. Alleged ill-treatment of the applicant by the police on 22 January 2004 and investigation thereof

23 . On 22 January 2004, the applicant was apprehended at his apartment and taken to the police station where he was subsequently arrested. The parties provided different account s of the events.

24 . According to the applicant , he had been beaten by the police at the apprehension. H e raised this complaint before the Court f or the first time on 11 November 2005 , having stated , inter alia , that on 9 August 2004 he had requested that the prosecutor ’ s office institute criminal proceedings against three police officers who had threatened him with firearms and fractured two of his ribs when try ing to make him a d m it guilt for a crime. No copy of the complaint has been provided to the Court. On 5 June 2008 the applicant s ubmitted that on 22 January 2004, K. ‒ who was the brother of the applicant ’ s alleged accomplice in the said crime ‒ and his colleagues had unlawfully broken into his apartment and had severely beaten him while try ing to make him confess . I n his comments o n the Government ’ s observations , the applicant s tat ed that on 22 January 2004 three police officers, including K ., had c o me to his place of residence, had threatened him and hit him on his head and body with their firearms , fractur ing two of his ribs . The reafter , he had been forced to go to the police station. In view of the beating he had been given , he had been unable to resist and had had to go with the officers.

25 . The Government submitted that no pressure or physical force had been used on the applicant whilst being a pprehen ded and that the latter had voluntarily agreed to go with the officers to the police station.

26 . The documents submitted by the Government suggest that d uring the trial in his criminal case, the applicant repeated his complaint of ill ‑ treatment. Thus, a ccording to the District Court ’ s ruling of 29 March 200 5 , the applicant submitted that on 22 January 2004 , K. and three other police officers had c o me to his apartment and had asked him to go with them to the police station. They were armed and used physical coercion , hitting him on his head several times with their firearms. H is sister had also been present in the apartment. The ruling further suggests that , when questioned as a witness , K. had stated that on 22 January 2004 wh ilst on duty as a security service officer , he had witnessed his brother being apprehended by the police. A police officer had approached K. and asked him to assist in the apprehension of the applicant, with whom K. was acquainted. T he police officer, K. and his two subordinates then went to the applicant ’ s address. W ith the exception of one security service officer who had remained in the car , they had all gone to the applicant ’ s apartment. When the applicant opened the door, they had checked his documents, had apprehended him and had escorted him to the police station. K. submitted that the applicant ’ s sister had also been present in the apartment.

27 . By the afore mentioned ruling of 29 March 2005 , the District Court ordered the prosecutor ’ s office to identify , by 11 April 200 5 , the persons who had apprehended the applicant and to question them and the applicant ’ s sister in relation to the applicant ’ s allegations of ill-treatment. The ruling also instructed the prosecutor ’ s office to identify other individual s who could give evidence c on cerning the applicant ’ s complaint and to question them in this respect . Lastly, t he prosecutor was ordered to i ss ue a procedural decision following the results of the inquiry .

28 . On 18 April 2005 the District Court noted the prosecutor ’ s failure to comply with the above ruling and sent the case for additional investigation.

29 . On 21 July 2005 the applicant ’ s sister was questioned and testified that on 22 January 200 4 at about 10 a . m. she had opened the door to K . and two other individuals , who had i dentified themselves as police officers . Thereafter , she had woke n the applicant , and the police officers had ask ed him to proceed to the police station , having informed him that two other individuals had committed a crime and he needed to present himself with a view t o further inquiry. The applicant had got dressed and had gone with the police officers . T he applicant ’ s sister further submitted she had not witness ed any ill-treatment as she had not been present in the applicant ’ s room. She stated , however , that s he had heard raised voice s during the conversation between the applicant and the police officers.

30 . On 23 November 2005 the applicant lodged a complaint about his ill-treatment with the prosecutor ’ s office. He claimed that K. and his three colleagues had c o me to his apartment. They had been armed and had tried to force him to assume K. ’ s brother ’ s guilt for the crime . When the applicant refused , K. and one of his colleagues, who identified himself as K. ’ s cousin, started beat ing him and fractured two of his ribs. As they were demand ing that the applicant go to the police station , the applicant ’ s sister ‒ who had been sleeping in another room – had c o me in . The applicant further submitted that the police officers had left the apartment after he had stated, in his sister ’ s presence, that those officers had no authority to take him to the police station . A n hour later they had c o me back , accompanied by the police officer who afterwards questioned the applicant at the police station . Lastly, t he applicant alleged that K. had forced his sister to give false evidence.

31 . On 17 May 2007 the District Court issued a separate order to the investigating authorities to verify , by 29 May 2007 , the applicant ’ s allegations of ill-treatment , having noted in this respect that its order of 18 April 2 005 had not been complied with.

32 . On 4 June 2007 the prosecutor questioned the police officer who had been identified as the one who had apprehen ded the applicant . The officer submitted that it had been ne c e ssary to question the applicant as there was evidence about his possible involvement in a crime . K., who knew the applicant and his home address, happened to be in the vicinity of the police station at the time and volunteered to show them the applicant ’ s place of residence. T hey had arrived a t the applicant ’ s apartment around lunch time . T he police officer stated that he had not been armed that day and K. w ould only have had a pneumatic weapo n, if he had one at all. After enter ing the apartment, the officer had identified himself and had informed the applicant that there had been testimon y against him. He th erefore ask ed the applicant to go with him to the police station and the latter agreed. The conversation had t a k en place in the applicant ’ s room but the police officer did not remember if K. had also entered the room. He further alleged that no recourse to physical force had been needed as the applicant had not resist ed and had complied with his request voluntarily . He finally stated that a girl had also been present in the apartment.

33 . On the same day, on the basis of the above- mentioned statements by the police officer, the prosecutor refused to institute criminal proceedings against the police officer, having found that no physical force had been applied to the applicant and that he had voluntarily agreed to go to the police station. This deci sion has not been challenged by the applicant and was referred to by the District Court in its judgment of 8 June 2007.

34 . The documents before the Court indicate that o n 26 January 2004 the applicant was admitted to Odesa SIZO. According to the authorities , he underwent a medical examination upon his admission ‒ including an X-ray ‒ was found to be healthy , and did not complain about any injury . His medical file contained an X-ray taken at the city hospital of 25 January 2004 , on whose basis, as alleged by the applicant, Odessa SIZO medical staff concluded that the applicant “lacked part of his third left rib” (see paragraph 50 below).

35 . The case file suggests that in 2006 the applicant ’ s lawyer had made inquir i e s to the SIZO authorities and the city hospital about the applicant ’ s possible injuries following the alleged ill-treatment. The SIZO administration had provided the lawyer with a record of the applicant ’ s state of health upon his admission to the SIZO and the medical treatment provided to him in detention. The X-ray of 25 January 2004 was mentioned as one of the documents in the applicant ’ s file upon his admission to the SIZO. According to the city hospital ’ s reply, no in-patient treatment was provided to the applicant in January 2004.

C . Conditions of the applicant ’ s detention in the SIZO

36 . From 26 January 2004 to 23 November 2007 the applicant was detained in Odesa SIZO. Without specifying in which cells he had been held or for how long, the applicant initially submitted that his conditions of detention had been unbearable. In his reply to the Government ’ s observations , the applicant specified that the cell s had not afford ed enough living space, that the sanitary conditions had been poor , and that he had been detained in those conditions for the most of the day , with no outdoor activity allowed.

37 . According to the information provided by the Government, the applicant was held in the following cells:

- cell no. 209 , measuring 7 . 07 sq. m ( intended for 4 detainees);

- cell no. 219 , measuring 6 . 83 sq. m ( intended for 4 detainees);

- cell no. 223 , measuring 6 .9 9 sq. m ( intended for 4 detainees);

- cell no. 2 55 , measuring 7.58 sq. m ( intended for 4 detainees);

- cell no. 2 5 7, measuring 7 . 3 9 sq. m ( intended for 4 detainees);

- cell no. 2 55 , measuring 7. 85 sq. m ( intended for 4 detainees);

- cell no. 2 85 , measuring 7 . 44 sq. m ( intended for 4 detainees);

- cell no. 119 , measuring 33 . 42 sq. m ( intended for 12 detainees);

- cell no. 129 , measuring 77 . 45 sq. m ( intended for 42 detainees);

- cell no. 1 31, measuring 35 . 22 sq. m ( intended for 14 detainees);

- cell no. 326 , measuring 6 . 73 sq. m ( intended for 4 detainees);

- cell no. 357 , measuring 7 . 31 sq. m ( intended for 4 detainees).

38 . According to the Government, the conditions in those cells had been adequate and they were equipped with the requisite furnishings and facilities and a partitioned toilet . The windows and the ventilation system allowed fresh air and natural light to circulate and running water and mains drainage had been available .

II. RELEVANT DOMESTIC LAW

Code of Criminal Procedure of 1960, as worded at the material time

39 . The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03 , § 33).

40 . Under Article 23-2, if the court discovers a violation of law and/or of citizens ’ rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation. Failure to take the requisite measures cons t i tut e s an administrative offence.

41 . Under Article 236-1, complaints against the decision of an investigator or prosecutor to refus e to initiate criminal proceedings may be filed with the local court by a person whose interests it concerns at the place of the respective authority or official.

42 . The provisions concerning the application of preventive measures and their types, the time-limits for pre-trial detention , and the grounds for and procedure of detention by an enquiry body (the investigator in the instant case), can be found in the Molodorych v. Ukraine judgment, no. 2161/02 , §§ 56-58, 28 October 2010.

43 . Article 237 obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia , whether there were grounds for changing, lifting or applying a preventive measure.

III. RELEVANT INTERNATIONAL MATERIAL

44 . The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 2005 read as follows:

“... The CPT also recommends that the Ukrainian authorities review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that these are at least 4 m² in all the establishments under the authority of the Department for the Enforcement of Sentences. ...”

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE 3 OF THE CONVENTION

45 . The applicant complained under Article 3 of the Convention that he had been beaten by the police whilst being a pprehen ded on 22 January 2004 and that there had not been an adequate domestic investigation into the matter. The applicant further complained that the physical conditions of his detention in Odesa SIZO had been appalling. He relied on Article 3 of the Convention, which reads as follows:

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

A. Alleged ill-treatment of the applicant on 22 January 2004 and effectiveness of the subsequent investigation

1. Admissibility

46 . The Government submitted that the applicant ’ s complaint was manifestly ill-founded as it was limited to vague and general statements not supported by any evidence. The y argu ed that the applicant had been inconsistent in his allegations .

47 . The Government further stated that upon his admission to Odesa SIZO the applicant had been found to be healthy , that his sister, who had witnessed the applicant being apprehen ded , did not testify t o any use of force by the police , and that no proof of the applicant ’ s ill-treatment had been found in the course of the investigation of his complaint by the prosecutor (see paragraphs 34, 29 and 33 respectively).

48 . The applicant argued that h is statements w ere consistent, sufficiently detailed and supported b y genuine medical evidence , in particular by the X ‑ ray of 25 January 2004 . He further submitted that the investigation into his complaint was not prompt, thorough and independent.

49 . The Court notes that the complaint of ill-treatment and the lack of effective investigation into this allegation raises serious issues requiring an examination of the merits. Therefore, contrary to the Government ’ s submissions, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Alleged ill-treatment

50 . The applicant re ferred to the arguments which he had submitted in respect of the admissibility of this complaint and reiterated that his injuries , namely ribs fracture , were confirmed by the X-ray of 25 January 2004 . In addition, in reply to the Government ’ s comments, he stated that the alleged absence of part of a rib on his X-ray picture was a medical nonsense and therefore a n incorrect description by Odesa SIZO medical staff of what was shown by the X-ray in order to cover up the police officer ’ s crime. He submitted in this respect, without giving any details, that his health complaints upon the admission to the SIZO had been disregarded by the authorities.

51 . Having referred to the arguments which they had submitted in respect of the admissibility of this complaint, the Government stated that there had been no violation of Article 3 of the Convention in its substantive limb.

53 . In the present case, the Court notes that the applicant maintained his allegations of ill-treatment before both the national authorities and the Court. It observes , at the same time, that the applicant was not always consistent as regards the details, including those re lating to the injuries sustained . Thus, i n his initial complaint before the Court, he submitted that , the police officers had threatened him with firearms and had fractured two of his ribs whilst apprehending him . In reply to the Government ’ s comments , he further stated that the police officers had hit him o n his head and body with their firearms . Likewise, it is apparent that the applicant ’ s initial complaint to the prosecutor concerned the fractured rib , while the District Court ’ s ruling of 29 March 2005 refers only to the head injury (see paragraph 26 above) .

54 . The Court further notes that t he applicant did not produce any evidence in support of his initial allegations. The only evidence which was submitted subsequently w ere the replies of Odesa SIZO administration to the applicant lawyer ’ s inquiries, in which they referred , inter alia , to the X ‑ ray of 25 January 2005 (see paragraph 35 above ). The X-ray at issue , supported by a medical opinion as to the diagnosis and its link to the alleged ill-treatment, has not been provided by the applicant to the Court , even since his release . T he Court is not aware o f any obstacle for the applicant in obtaining these pieces of evidence from the city hospital or the authorities. The applicant also remained silent as to the circumstances of his examination at the city hospital , while the case file suggest s that he had officially been in det e n tion at the police station from 22 to 26 January 2004. Equally, there is no evidence about the applicant ’ s state of health at the time when he was apprehen ded and, in particular, at the time when his ribs w ere allegedly broken.

55 . The Court notes that the Government denied that the applicant had suffered any injur y , having referred, inter alia , to the results of his medical examination upon his admission to the SIZO. However, they provided no documents in support of their statement. Likewise, the Government did not submit the applicant ’ s X-ray of 25 January 2004 and a medical opinion c on cerning it , despite the Court ’ s explicit request for the se items .

56 . The Court further notes that the applicant failed to produce any other strong evidence corroborating , either directly or indirectly, his allegation of ill-treatment.

57 . In the light of the above considerations , the Court finds it impossible to establish “beyond reasonable doubt” whether or not the applicant had sustained any injury as a result of his encounter with the police on 22 January 2004 . Yet, even assuming that he had suffer ed a fractured rib , as alleged, the Court is of the view that without a medical report containing the diagnosis and a possible link between the injury and the alleged ill ‑ treatment, it cannot be established that the applicant was subjected to ill ‑ treatment by the police (see, mutatis mutandis , Böke and Kandemir v. Turkey , nos. 71912/01, 26968/02 and 36397/03, §§ 49-50, 10 March 2009) .

(b) Effective investigation

59 . The applicant reiterated that the authorities had failed to conduct a prompt, thorough and effective investigation following his complaints about ill-treatment. He submitted that his initial complaint to the prosecutor ’ s office had not been duly considered by the authorities and had been sent back and forth between the prosecutors and the District Court. The applicant further pointed out the deficiencies in the investigation of his complaint and noted that he had n either been given an opportunity to participate effectively in the inquiries nor been informed of the decisions taken.

60 . The Government stated that the prosecutor ’ s office had conducted an effective investigation into the applicant ’ s complaint of ill-treatment and observed that the applicant had not challenged the decision taken following the results of the investigation.

61 . The Court reiterates that Article 3 of the Convention requires the authorities to effectively investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Ay v. Turkey , no. 30951/96 , §§ 59-60, 22 March 2005).

62 . Although in the present case the Court has not found it proved, on account of lack of evidence, that the applicant was ill-treated at the hands of the police, that does not in principle preclude the complaint in relation to Article 3 from being “arguable” for the purposes of the positive obligation to investigate , as has been held in previous cases (see , for example, Böke and Kandemir , cited above , § 54). The Court notes that the applicant alleged before the domestic authorities that he had been seriously ill-treated by the police. The Court notes that the credibility of that allegation could have been verified on the basis of the applicant ’ s medical documentation of January 200 4 . However, the relevant documents had not been seized and evaluated by the prosecutor. This omission makes it more difficult for the Court to determine whether there was a reasonable suspicion underlying the applicant ’ s allegation which would engage the authorities ’ obligation effectively to investigate it. At the same time, the Court is mindful of the fact that the responsibility for the aforementioned difficulty – the failure to seize the documents ‒ lies with the State authorities. Furthermore, the Court is mindful of the fact that the District Court repeatedly ordered the investigating authorities to verify the credibility of the applicant ’ s complaint s . In sum, there is nothing in the case file material to convince the Court that the applicant ’ s complaint of ill-treatment before the domestic authorities is so devoid of any reasonable suspicion that it merited no investigation. It therefore finds that the State was bound in the present case by the positive obligation to investigate the allegation in an efficient and expedient manner.

63 . The Court reiterates that any investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what has happened and should not rely on hasty or ill-founded conclusions to close their investigation or to provide a basis for their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, Serikov v. Ukraine , no. 42164/09, § 78, 23 July 2015).

65 . The Court finds it remarkable that the domestic authorities appear to have taken no investigative steps whatsoever in response to the applicant ’ s initial complaint to the prosecutor ’ s office until the applicant repeated his allegation s before the trial court , which examined the criminal case against him. It was during the trial that h e and the police officers involved were questioned for the first time .

66 . The Court also recalls that the District Court repeatedly instructed the investigating authorities to take measures to verify the credibility of the applicant ’ s allegations , having found that its previous orders in that regard had not been complied with (see paragraphs 27 and 31 above) . In the Court ’ s opinion, the investigator ’ s disregard for the instructions of the District Court further undermined the effectiveness of the investigation .

67 . The Court further observes that the investigation into the applicant ’ s complaint was limited in scope as it amounted only to the questioning of the police officers and the applicant ’ s sister. No measures had been taken aimed at establishing whether the applicant had any injur y . Likewise, t here is no evidence that the investigator questioned the applicant or that he had ever tried to comply with the District Court ’ s order to establish and question other persons who could have given evidence with regard to the applicant ’ s complaint .

69 . The Court finally notes that it took the authorities almost three years to conduct the investigation and deliver a decision upon the applicant ’ s ill-treatment complaint from the moment of its alleged submission (see paragraph 24 above). Neither the Government nor the case file suggested any plausible justification for such length.

70 . Having regard to the mentioned above , the Court concludes that the State authorities failed to conduct a proper investigation into the applicant ’ s allegations of ill-treatment.

71 . There has accordingly been a violation of Article 3 of the Convention under its procedural head.

B . Physical conditions of the applicant ’ s detention in Odesa SIZO

1. A dmissibility

72 . The Government claimed that the applicant ’ s complaint was unsubstantiated and not supported by any evidence.

73 . The applicant disagreed.

74 . The Court notes that in the present case the applicant indeed failed to provide a detailed description of the conditions of his detention. He described neither the cells in which he had been detained, nor the periods of his detention there, nor the living space afforded per detainee.

75 . Nonetheless, on the basis of the case file, the Court considers that the applicant ’ s chief grievance – that of overcrowding in Odesa SIZO – can still be regarded as having a sufficient basis in the circumstances at hand. The Court therefore dismisses the Government ’ s objection.

76 . The Government further alleged that this aspect of the case was inadmissible on the grounds of non-exhaustion of domestic remedies. In particular, the applicant should have raised the above complaints with the prosecutor ’ s office during his detention . The y submitted in this respect that the applicant had lodged the respective complaint only in 2010 , after being released from prison . F ollowing the complaint, a number of violations on account of conditions of detention had been found in Odesa SIZO but not in the cells where the applicant had be en detained .

77 . The applicant alleged that the problems complained of were of a structural nature and Odesa SIZO administration had been well aware of them. Given that he was a detainee, the remedies suggested by the Government were not only ineffective but could also have resulted in reprisals.

79 . The Court further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

80 . The applicant described the conditions of his detention in Odesa SIZO (see paragraph 36 above) and alleged that they were incompatible with Article 3 of the Convention.

81 . The Government maintained that the applicant ’ s complaint was not specific. They contended that the conditions of his detention had been adequate (see paragraph 37 above).

82 . T he Court recalls that Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

83 . The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention and may disclose a violation, both alone or taken together with other shortcomings (see , amongst many authorities, Karalevičius v. Lithuania , no. 53254/99, §§ 39 ‑ 40, 7 April 2005; and Ananyev and others v. Russia , nos. 42525/07 and 60800/08, §§ 145-147 and 149, 10 January 2012) .

84 . The Court notes that i n the present case the available evidence indicates that during his stay in Odesa SIZO the applicant lacked personal space. In particular, as reported by the Government, the cells in which the applicant was detained allowed from 1.68 to 2.78 square metres of floor space per inmate. The Government did not actually state how many inmates occupied these cells at the relevant time.

85 . Furthermore, given that the cells also contained sanitary facilities, the personal space available to detainees was further reduced.

86 . Of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. The Court has found a violation of Article 3 because the lack or short duration of outdoor exercise was a factor that further exacerbated the situation of the applicant, who was confined to his cell for all or the rest of his time (see Ananyev and others , cited above, §§ 149-151 and the case-law cited therein).

87 . The Court observes from the material in the case file concerning the SIZO regime that detainees had been entitled to one-hour daily walk and thus were confined to their cell for most of the day.

89 . In view of those findings, the Court does not find it necessary to address the applicant ’ s other allegations relat ing to his poor conditions of detention.

II . ALLEGED VIOLATION S OF ARTICLE 5 OF THE CONVENTION

90 . The applicant complained that his detention on remand had been unlawful as it had either not been covered by any court order or had been ordered without sufficient reasons with no time-limit. Furthermore, he considered that the overall length of his pre ‑ trial detention could not be regarded as reasonable. Lastly, the applicant complained about his inability to obtain proper judicial review of the lawfulness of his detention . He relied on Article 5 §§ 1 (c), 3 and 4 of the Convention, which reads, in so far as relevant:

Article 5

“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 wit h 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.”

A. Admissibility

91 . The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 5 § 1 of the Convention

(a) The a pplicant ’ s arrest and detention pursuant to the investigator ’ s decision

92 . The applicant asserted, referring to the Court ’ s case-law (see Grinenko v. Ukraine , no. 33627/06, § 83, 15 November 2012), that his arrest and detention between 22 and 24 January 2004 had been contrary to domestic law and not warranted by the circumstances of the case. In particular, there had been no grounds, under Articles 106 and 115 of the CCP for arresting him without a court order.

93 . The Government contended that the applicant ’ s arrest had been based on the reasonable suspicion that the applicant had committed a crime. They submitted that at the moment of the applicant ’ s arrest, criminal proceedings had been instituted against him .

94 . The Court reiterates that where deprivation of liberty is concerned , it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland , no. 28358/95 , § 52, ECHR 2000-III). T he expression “lawful” in Article 5 § 1 essentially refers back to national law and lays down an obligation to conform to the substantive and procedural rules thereof. The Court may review whether national law has been observed for the purposes of this Convention provision; however, it is first and foremost up to the national authorities, notably the courts, to interp ret and apply domestic law (see Oleksiy Mykhaylovych Zakharkin v. Ukraine , no. 1727/04 , § 84, 24 June 2010). The Court further reiterates that the “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that, during the period under consideration, the detention was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner (see Yeloyev v. Ukraine , no. 17283/02 , §§ 41-42, 6 November 2008).

95 . Turning to the circumstances of the present case , the Court notes that according to the police report of 22 January 2004 , the legal basis for the applicant ’ s arrest was Article 115 of the CCP , as in force at the material time (see paragraph s 7 and 42 above). This provision did not enumerate exhaustive ly the grounds for an arrest and refers, instead, to several other CCP provisions, none of them having been cited by the police in the applicant ’ s case. It is therefore unclear from the report which of the provisions of the domestic law served as the exact basis for the applicant ’ s arrest. Furthermore, apart from noting that the applicant was suspected of an offence , the report presented no reasons whatsoever for the applicant ’ s arrest and did not explain why it was necessary in the particular circumstances. It did not refer to any factual circumstances that would persuade an independent observer that there had been a reasonable suspicion that the applicant had committed a crime. In the a bsen ce of a clear indication of the legal grounds for the applicant ’ s arrest and reasons making application of the relevant legal provisions necessary, the Court considers that the applicant ’ s arrest and detention between 22 and 24 January 2004 were not free from arbitrariness ( see Korneykova v. Ukraine , no. 39884/05, § 34, 19 January 2012) .

96 . There has therefore been a violation of Article 5 § 1 of the Convention in this regard.

( b ) The a pplicant ’ s detention not covered by any decision

97 . The applicant complained that on a number of the occasions on wh ich his criminal case had been transferred between the investigating authorities and the trial court, his detention had not been covered by any judicial decision and had therefore been unlawful. He referred in that connection to the judgment in the case of Yeloyev v. Ukraine (no.17283/02, § 50, 6 November 2008) , in which the Court noted that it had already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been submitted to the trial court .

98 . The Government did not comment on this particular aspect of the applicant ’ s complaint. At the same time, it follows from their submissions that they considered the District Court ’ s decision of 5 May 2004 as the one warranting the applicant ’ s detention.

99 . Indeed, as pointed out by the applicant, t he Court has previously observed in a number of cases against Ukraine that the periods of detention during transmittal and transfer of a criminal case from the prosecutor to the court and back were often not covered by any decision (see, for example, Solovey and Zozulya v. Ukraine , 40774/02 and 4048/03, §§ 70-73 , 27 November 2008 ) . The Court notes, on the basis of the documents before it, that i n the present case these were the periods between 8 April and 18 June 2004 and between 18 April 200 5 and 15 September 200 5 . It observes in this respect that it does not possess information as to the course of the proceedings and the decisions taken between 18 June 2004 and 18 April 200 5 .

100 . Further more , the case file does not suggest that on 5 May 2004, when committing the applicant for trial, the District C ourt made any rul ing with respect to the applicant ’ s detention . The Court therefore does not accept the Government ’ s contention that th e decision at issue warranted the applicant ’ s detention after that date .

101 . T he Court has previously found that relevant domestic law at the time regulated procedural steps concerning the committal proceedings and transmittals of the case for further investigation, but it did not set clear rules stating by what authority, on what grounds and for what term the detention of the accused could be prolonged (see, for example, Yeloyev , cited above , §§ 48 ‑ 51 , and Kondratyev v. Ukraine , no. 5203/09 , §§ 110-112, 15 December 2011). Moreover, the Court also held that such a situation, where continued detention before or during trial was not covered by any judicial decision, stemmed from a legal lacuna and was a recurrent structural problem in Ukraine (see Kharchenko v. Ukraine , no. 40107/02 , §§ 98 and 101 , 10 February 2011 ). No arguments have been put forward in this case which would enable the Court to reach a different conclusion .

102 . There has therefore been a violation of Article 5 § 1 of the Convention in respect of the periods between 8 April and 18 June 2004 and between 18 April and 15 September 2005 .

(c ) T he applicant ’ s detention pursuant to the court orders

( i ) District Court decision of 24 January 2004

103 . The applicant considered that his initial detention by the District Court on 24 January 2004 had been unlawful and unjustified as the court had g i ve n no reasons for the detention and had failed to set any time-limit. He further submitted that there had been no indication that he might abscond as, at the time, he was under an obligation to present himself regularly to the police as a con sequence of a conditional sentence against him.

104 . The Government submitted that the applicant ’ s detention pursuant to the court ’ s decision had been justified by the reasonable suspicion that he had committed a crime , the fact that he had been convicted in the past and that, if released, he might abscond in order to avoid trial or obstruct the investigation. They thus considered that the applicant ’ s detention had been in compliance with Article 5 of the Convention.

106 . There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the period between 24 January and 18 March 2004 .

( i i) District Court ’ s ruling of 15 September 2005

107 . The applicant submitted that his detention on the bas is o f th is ruling, delivered following the preparatory hearings for the trial, had been unlawful as the ruling had neither given any reasons nor set any time-limit for his detention. He referred to the Court ’ s case-law on the matter (see , inter alia , Baranowski v. Poland , cited above , §§ 55-56).

108 . The Government provided no comments in this respect.

109 . The Court observes that on 15 September 2005, at the preparatory hearings of the case, the District Court upheld the preventive measure with respect to the applicant. In so doing, it did not set a time-limit for the continued detention and did not give any reasons for its decisions (see paragraph 17 above) , thus leaving the applicant in a state of uncertainty as to the grounds for his detention. The case file suggests that the applicant had been detained under this ruling until his conviction on 8 June 2007.

110 . The Court has previously examined similar situation s in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention , having taken into account the fact that Ukrainian legislation at the material time did not contain any requirement for a domestic court, when committing a person for trial, to give reasons for changing the preventive measure or for continuing the detention of an accused, or to set any time-limit when maintaining the detention (see , among others, Solovey and Zozulya , cited above, §§ 74-76). No arguments have been put forward in this case which would enable the Court to reach a different conclusion . I t therefore considers that the District Court ’ s decision of 15 September 2005 did not afford the applicant adequate protection from arbitrariness which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 of the Convention .

111 . There has therefore been a violation of Article 5 § 1 of the Convention in respect of the period between 15 September 2005 and 8 June 2007.

2 . Length of pre-trial detention (Article 5 § 3)

112 . The applicant contended that his pre-trial detention had been excessively long and had not been based on sufficient grounds.

113 . The Government argued that his pre-trial detention had been a justified preventive measure , given the seriousness of charges against the applicant, his character and his previous convictions . They refer red to a District Court decision of 13 August 2005 , among others . The Government also considered its length to be reasonable.

114 . The Court recalls that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, amongst many others, Krikunov v. Russia , no. 13991/05 , § 36, 4 December 2014).

115 . The Court notes that the applicant remained in pre-trial detention within the meaning of Article 5 § 1 (c) of the Convention from 22 January 200 4 to 8 June 2007 , that is to say for three years and four and a half months .

116 . The Court does not consider this peri od short in absolute terms (see and compare with Doronin v. Ukraine , no. 16505/02, § 61, 19 February 2009).

117 . It also refers to its findings with respect t o certain periods of the applicant ’ s detention from the perspective of Article 5 § 1 (c) of the Convention (see paragraphs 93-111 above ). It notes in particular that the domestic authorities failed , from the very beginning, to advance any reasons for keeping the applicant in pre-trial detention .

118 . The Court notes that the decision of 13 August 2005 referred to by the Government is not available in the file. It notes, however, that even assuming that this decision exist s and state s the grounds listed by the Government, they cannot be regarded as “relevant and sufficient” more than a year after the applicant ’ s arrest (see Tretyakov v. Ukraine , no. 16698/05, § 59, 29 September 2011).

119 . It further appears that on 18 March 2004 the applicant ’ s detention was extended on the sole ground that additional time was required for the investigation to be completed (see paragraph 10 above ). It also follows that at no stage did the District Court consider any alternative preventive measures in lieu of detention on remand.

120 . The Court therefore considers that the domestic authorities failed to duly justify the applicant ’ s continued pre-trial detention for three years and four and a half months (see Pleshkov v. Ukraine , no. 37789/05 , §§ 36-37, 10 February 2011).

121 . It follows that there has been a violation of Article 5 § 3 of the Convention.

3 . Judicial review of the applicant ’ s detention (Article 5 § 4)

122 . The applicant maintained that on a number of occasions during the trial he had requested that the court change the preventive measure but his requests for release from custody had been either ignored or re jected without thorough examination, in breach of Article 5 § 4 of the Convention . He also observed that significant intervals had elapsed between the reviews of the lawfulness of his detention and that his requests for release from custody had not been examined promptly .

123 . The Government submitted that the applicant had had, at his disposal, an effective procedure to challenge his detention. In particular, by virtue of Article 165 of the CCP it had been open to him during the pre-trial stage of the proceedings to lodge an appeal against the court decision ordering and extending his detention, but he had not done so. The y further submitted that the applicant had fully benefitted from the procedure required by the Article 5 § 4 of the Convention , as all of his requests for release had been promptly and duly examined by a competent court . They also stated that the domestic court had reviewed the lawfulness of the applicant ’ s detention on several occasions (on 18 March, 5 May 2004 and on 13 August 2005) and had reasonabl y upheld the preventive measure, having considered the arguments of all participants in the proceedings .

124 . The Court observes that it has previously noted, in a number of other cases against Ukraine, that by virtue of Article 5 § 4 of the Convention detainees were entitled to have access to a procedure whereby the reasonableness of their continuous detention could be speedily examined in the light of their particular situations and individual circumstances (see, for example, Buryaga v. Ukraine , no. 27672/03 , §§ 73-74, 15 July 2010; Vitruk v. Ukraine , no. 26127/04 , §§ 92-93, 16 September 2010 ; and Tretyakov , cited above, § 66). In the present case, the Court notes that in the course of criminal proceedings the applicant repeatedly requested his release from custody (see paragraph s 16 and 18 above ). The Court observes in this respect that the Government provided no d ocuments in support of their statements that each applicant ’ s request for release had been examined by the court. The Court finds no evidence of such examination in the case file either. Further more , i t appears that the speediness of the review of the lawfulness of the applicant ’ s detention was depende nt on the date set for the hearing in the case against him, which h as previously been identified as a recurring problem in cases against Ukraine due to the lack of clear and foreseeable provisions which would provide for such a procedure during the trial stage in a manner compatible with the requirements of Article 5 § 4 of the Convention (see Molodorych , cited above , § 108).

125 . Furthermore, as ha s alrea dy been noted by the Court (see paragraph s 101 and 110 above), the domestic court did not produce a reasoned decision justifying the applicant ’ s detention following his committal for trial . Likewise, there is no evidence that the applicant ha s ever been heard on the matter . The Court has already found this practice, which is recurrent in similar decisions of Ukrainian courts, to be incompatible with the requirements of Article 5 § 4 (see Tsygoniy v. Ukraine , no. 19213/04 , § 78, 24 November 2011).

126 . In view of th e foregoing , the Court cannot but conclude that the procedure by which the lawfulness of the applicant ’ s detention was reviewed did not meet the standards required by Article 5 § 4 of the Convention. There has therefore been a violation of th is provision .

III . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

127 . The applicant also complained under Article 6 of the Convention of the unfairness of the criminal proceedings against him and their excessive length, the un satisfactory work of his state-appointed lawyers , a nd the violat ion of the presumption of his innocence . He also claim ed violation of Article 8 of the Convention on account of an alleged search of his apartment by the police.

128 . In the light of all the material before it, 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 provisions relied on by the applicant.

129 . 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.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

130 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

131 . The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage in respect of medical expenses which he had incurred as a result of his alleged ill-treatment and the inadequate conditions of his detention. He also claimed EUR 1,000,000 in respect of non-pecuniary damage caused by the mentioned violations.

132 . The Government contested those claims.

133 . The Court finds no connection between the claim concerning the medical expenses and the violations found in the applicant ’ s case . I t therefore rejects this claim as unsubstantiated. On the other hand, t he Court considers that the applicant must have suffered non-pecuniary damage as a result of the violations of the Convention found in his case. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court awards the applicant EUR 15 ,000 in respect of non-pecuniary damage.

B. Costs and expenses

134 . The applicant claimed EUR 300 for costs and expenses incurred in the proceedings before the national authorities and before the Court. He also claimed EUR 3 ,7 95 for legal representation before the Court to be paid directly into his lawyer ’ s bank account. In support of his claim, he submitted a legal assistance contract signed by him and Mr Markov on 21 July 2014 and a statement detailing the work completed under the aforementioned contract.

135 . The Government contested those claims.

136 . According to the Court ’ s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 2 , 500 for legal representation of the applicant by Mr Markov to be transferred directly in to the bank account of the latter .

C. Default interest

137 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares admissible the complaints under Article 3 of the Convention concerning the poor conditions of detention in Odesa SIZO, the ill-treatment by the police on 22 January 2004 and the lack of effective investigation in this respect , a nd also the complaints under Article 5 concerning the unlawfulness and arbitrariness of the applicant ’ s arrest and detention, its length , and the lack of effective judicial review of the lawfulness there of , and declares the remainder of the application inadmissible;

2 . Holds that there has been no violation of Article 3 of the Convention under its substantive aspect on account of the applicant ’ s alleged ill-treatment on 22 January 2004 ;

3 . Holds that there has been a violation of Article 3 of the Convention under its procedural aspect on account of the applicant ’ s alleged ill-treatment on 22 January 2004;

4 . Holds that there has been a violation of Article 3 of the Convention in respect of material conditions of the applicant ’ s detention in Ode s a SIZO ;

5 . Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s arrest and detention between 22 and 24 January 2004;

6 . Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s detention between 24 January and 18 March 2004, between 8 April and 18 June 2004, between 18 April and 15 September 2005 as well as between 15 September 2005 and 8 June 2007 ;

7 . Holds that there has been a violation of Article 5 § 3 of the Convention on account of excessive length of the applicant ’ s detention o n remand ;

8 . Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of appropriate judicial review of the applicant ’ s detention on remand ;

9 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 15 ,000 ( fifteen thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2 , 500 ( two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses to be transferred directly to the bank account of the applicant ’ s lawyer;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 23 June 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Angelika Nussberger Registrar President