FIFTH SECTION

CASE OF KOBERNIK v. UKRAINE

( Application no. 45947/06 )

JUDGMENT

STRASBOURG

25 July 2013

FINAL

25/10/2013

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

In the case of Kobernik v. Ukraine ,

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

Mark Villiger , President, Ann Power-Forde , Ganna Yudkivska , André Potocki , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 2 July 2013 ,

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

PROCEDURE

1 . The case originated in an application (no. 45947/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksey Leonidovich Kobernik (“the applicant”), on 31 October 2006 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy .

3 . The applicant alleged, in particular, that the conditions of his detention and transportation were contrary to Article 3 of the Convention, that the length of pre-trial detention was not compatible with Article 5 § 3 of the Convention , and that the criminal proceedings did not comply with the “reasonable time” requirement under Article 6 § 1 of the Convention.

4 . On 1 February 2011 the application was declared partly inadmissible and the above complaint s were communicated to the Gove rnment.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1971 .

A. Criminal proceedings against the applicant

6 . On 13 May 1999 criminal proceedings were instituted against the applicant and five other persons in connection with a murder. On the same da y charges were drawn up against the applicant. As his whereabouts were unknown , the authorities decided to place him on the list of wanted persons and issued an order for preventive remand in custody .

7 . On 2 1 May 1999 the applicant was arrested. Subsequently, h e was charged with membership of an armed gang, murder s , extortion, and keeping firearms and ammunition without a permit. A number of his alleged accomplices were also arrested and charged.

8 . According to the Government, during the pre-trial investigation the authorities took more than 490 investigative actions in order to establish all the facts relevant for the criminal case.

9 . Following completion of the investigation, on 17 April 2001 a local court received the case file from the investigation authorities .

10 . On 5 June 2001 the case was allocated to the Supreme Court of the Autonomous Republic of Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of Crimea, and hereafter “the Court of Appeal ”) for consideration on the merits.

11 . On 25 June 2001 the Court of Appeal committed the applicant and fourteen other defendants for trial , and scheduled the next hearing for 30 July 2001 .

12 . On 30 July 2001 the hearing was adjourned because one of the defendants, some victims and lawyers failed to appear.

13 . On 6 August and 3 and 5 September 2001 hearing s were adjourned owing to the failure of some lawyers to appear.

14 . On 11 September 2001 the Court of Appeal established the identity of the defendants and read out the bill of indictment. The next hearing was scheduled for 13 September 2001.

15 . On 13 September 2001 the Court of Appeal adjourned the proceedings , following a request by one of the defendants for the hearings to be recorded, for which the technical means were not available at the time.

16 . The next hearing was scheduled for 9 July 2002 , but on that day the C ourt of Appeal adjourned it , as one of the defendants and two lawyers had failed to appear.

17 . On 11 July 2002 the Court of Appeal resumed consideration of the case .

18 . Between 29 July and 22 October 2002 several hearings were postponed , as the lawyers of certain defendants could not be present.

19 . On 12 November 2002 the Court of Appeal postponed the hearing till 24 February 2003 , because one of the lay judges had to deal with another case until that date .

20 . Between 18 March and 10 September 2003 no hearings were held , as one of the lay judges was ill.

21 . On 15 December 2003 the Court of Appeal remitted the case for additional investigation, upholding the custodial preventive measure in respect of the applicant after noting that there had been no grounds for changing the measure . The court found , inter alia , that the charges against the applicant and the other defendants had been v a gue and lacked appropriate substantiation. The decision was appealed against by the prosecution.

22 . On 8 May 2004 the Supreme Court quashed the decision of 15 December 2003 and remitted the case to the Court of Appeal for trial.

23 . The next hearing in the case took place on 28 February 2005 ; previous hearings had been adjourned because some defendants and lawyers had failed to appear.

24 . A number of later hearings also had to be adjourned for various reasons , including failure to appear by defendants, witnesses, victims, and lawyers , and also because of power cuts.

25 . On 22 May 2006 the Court of Appeal found, among other things, that the applicant was guilty of the above-mentioned crimes and sentenced him to fifteen years ’ imprisonment with confiscation of his property. The Court of Appeal also convicted fourteen other defendants. According to the Government, that judgment was passed after the Court of Appeal had held 105 hearings, during which it had questioned the defendants and numerous witnesses, examined the evidence in the file and considered various requests submitted in the course of the trial.

26 . The applicant appealed on points of law .

27 . On 5 April 2007 the Supreme Court partly quashed the conviction of the applicant on the charge of keeping firearms and ammunition without a permit. It upheld the remainder of the conviction as substantiated and confirmed the sentence .

B. Conditions of detention

28 . On 14 June 2007 the applicant was transferred to the Lugansk Pre ‑ Trial Detention Facility (“the Lugansk SIZO”) where he was held until 9 July 2007.

29 . According to the applicant, i n that facility he was held in a cell measuring about 15 sq. m, which was located in a semi-basement. The overall number of detainees ranged from fifteen to twenty . The number of bunks was insufficient and the detainees had to take turns to sleep . Some of the detainees were infected with tuberculosis. The toilet in the cell was dirty and offered no privacy. The sewer age system repeatedly broke down and the corridor was periodically flooded with waste water. There were two small windows and no ventilation. The walls of the cell were covered with mould. There were no mattresses or pillows. The laundry facilities were out of order. The nutrition was inadequate. The rubbish bins were located three metres from the outer wall of the cell and a bad smell penetrated from outside. Flies and cockroaches abounded.

30 . According to the Government, the applicant was held in cell no. 5 , which measured 17.7 sq. m. The cell was equipped with fifteen bunks, a bench and a table. The cell had not been overcrowded as it had never been occupied by more than fifteen detainees. Between 19 June and 9 July 2007 the cell had been usually occupied by thirteen detainees. No ne of the inmates was suffer ing from any serious illness. The toilet in the cell was separated by a plywood partition of 1.5 m in height. There were s everal breakdowns of the sewer age system which were quickly re paired . There were two windows which allowed sufficient daylight to enter and provided ventilation for the cell. The applicant was provided with bed linen, a mattress and a pillow. He was able to have a shower every seven days. N utrition was provided in accordance with domestic standards . R ubbish bins were kept in a special yard with a fence. Overall, the sanitary and hygienic conditions were adequate.

C. Conditions of transport in 2007

31 . According to the applicant, o n 14 June and 9 July 2007 he was transported in overcrowded railway carriages and vehicles. For railway transportation, the overall number of detainees in each compartment ranged from twelve to fifteen . The compartment s were not ventilated , even though the weather was hot. For transportation by road, the applicant and another twenty detainees were packed into a special vehicle, which heated up in the sun and did not provide sufficient space or ventilation.

II. RELEVANT DOMESTIC LAW

32 . The relevant domestic law can be found in the judgment in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 31-37, 12 October 2006).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33 . The applicant complained that the conditions of his detention in the Lugansk SIZO and th ose under which he was transported in June and July 2007 were incompatible with 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. Admissibility

1. The parties ’ submissions

34 . The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this part of the application. In particular, the applicant should have applied to the courts or raised the se issues before the prosecutor . A s an example of the practical effectiveness of the judicial remedy, the Government referred to the domestic court ’ s decision of 4 February 2009 , in which the claimants were awarded compensation in allegedly similar circumstances. They did not provide a copy of that decision.

35 . The Government further maintained that these complaints had not been properly developed or substantiated by the applicant , and therefore should be rejected as manifestly ill-founded.

36 . The applicant alleged that he had had no effective remedies to exhaust . He further insisted that his complaints under Article 3 of the Convention were well-founded and could not be rejected as inadmissible.

2. The Court ’ s assessment

( a ) Conditions of transportation

( b ) Conditions of detention

39 . T he Court further notes that th is complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

40 . Relying on their account of the conditions of the applicant ’ s detention, the Government submitted that they complied with the requirements of Article 3 of the Convention.

41 . The applicant disagreed and maintained his complaint. He challenged the Government ’ s submissions as factually incorrect .

42 . The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. In accordance with this provision, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, 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 , and that given the practical demands of imprisonment, his health and well-being are adequately secured (see Visloguzov v. Ukraine , no. 32362/02, §§ 56 and 57, 20 May 2010, with further references). The length of a period of detention may be a relevant factor in assessing the gravity of the suffering or humiliation caused to a detainee by the inadequate conditions of his detention. However, the relative brevity of such a period alone will not automatically exclude the treatment complain ed of from the scope of Article 3 if all other elements are sufficient to bring it within the scope of that provision (see Mkhitaryan v. Armenia , no. 22390/05, § 55 , 2 December 2008 ).

43 . The Court notes that that the length of the applicant ’ s detention in the Lugansk SIZO was twenty-five days. It further notes that the parties disagreed as to some aspects of the conditions in which the applicant was detained during that period. In particular , the Government disputed the applicant ’ s submissions about overcrowding in the cell . They maintained that the cell in fact measured 17.7 sq. m , and that during the period under examination the overall number of detainees held therein did not exceed fifteen persons while between 19 June and 9 July 2007 th e cell was usually occupied by thirteen detainees. The Government ’ s figures therefore suggest that for most of th e period of the applicant ’ s detention there w as less than 1.5 square metres of space per inmate in the applicant ’ s cell. F or the Court th o se figures indicate that the applicant was held in a severely overcrowded cell (see, for example, Yakovenko , cited above, § 84 , and G.O. v. Russia , no. 39249/03 , § 69 , 18 October 2011 ) . Moreover, the Court is mindful of the fact that the cell contained some furniture and fittings, such as bunks, a table, a bench and a toilet, which must have further reduced the floor area available to the applicant .

44 . The Court also notes that the Government d id not refute the applicant ’ s allegations that the toilet was not properly separated from the other parts of the cell and that the ventilation in the cell was inadequate . Likewise, the Government ’ s admission that the sewer age system had broken down several times gives more weight to the applicant ’ s contention that the sanitary conditions were unsatisfactory.

45 . The foregoing considerations are sufficient for the Court to conclude that the physical conditions of detention of the applicant in the Lugansk SIZO amounted to degrading treatment in breach of Article 3 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

46 . The applicant next complained that the length of his pre-trial detention had been excessive . He relied on Article 5 § 3 of the Convention, which reads as follows:

“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.”

A. Admissibility

47 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

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

49 . The Government contended that the charges against the applicant were very serious , and there had been a real risk that the applicant w ould abscond, impede the investigation and continue his criminal activities. In the opinion of the Government there had been sufficient and relevant reasons to keep the applicant in custody for the whole period of the investigation and trial.

2. The Court ’ s assessment

51 . Having regard to the general principles established in its case-law (see I.A. v. France , judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, § 102; Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV; and Iłowiecki v. Poland , no. 27504/95, § 61, 4 October 2001), the Court notes that the period of the applicant ’ s detention before conviction was particularly long. The Court accepts the Government ’ s view that the charges against the applicant were very serious, as he was c harged with membership of an armed gang, murder and other crimes . However, regard being had to the length of the applicant ’ s detention, the Court considers that the competent authorities should also have expressly adduced other reasons justifying holding him in custody during the entire period at issue. In the meantime, the Court is unable to assess the quality of the reasoning provided by the domestic authorities , as copies of the relevant decisions have not been provided by the Government. As regards the Court of Appeal ’ s decision of 15 December 2003, it contained no reasons for maintaining the preventive measure in respect of the applicant. Accordingly, t he available material does not give grounds for the conclusion that the applicant ’ s detention for the whole period under examination was based on relevant and sufficient reasons.

III . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

53 . The applicant further complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement. He relied on Article 6 § 1 of the Convention , the relevant part of which 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 ...”

A. Admissibility

54 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

55 . The applicant maintained that the length of the criminal proceedings had been unreas o nable .

56 . The Government alleged that the length of the proceedings was compatible with the requirements of Article 6 § 1 of the Convention , regard being had to the exceptional complexity of the case. There were no unreasonable delays for which the authorities could be held responsible.

2. The Court ’ s assessment

(a) Period to be taken into consideration

57 . The Court notes that in criminal matters the “reasonab le time” referred to in Article 6 § 1 of the Convention begins to run as soon as a person is “charged”, in other words, given the official notification by the competent authority of an allegation that he has committed a criminal offence. This definition also corresponds to the test whether “the situation of the [suspect] has been substantially affected”. As regards the end of the “time”, in criminal matters the period governed by Article 6 § 1 of the Convention covers the whole of the proceedings in issue, including appeal proceedings (see Merit v. Ukraine , no. 66561/01, § 70, 30 March 2004).

58 . The period to be taken into account in the present case thus commenced in May 1999 and finished in April 2007. It therefore lasted over seven years and ten months before the investigation authorit ies and at two levels of court jurisdiction.

(b) Reasonableness of the length of proceedings

59 . The Court observes that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

60 . The Court further notes that, except for the initial period between 13 and 21 May 1999, for the remaining period of the criminal proceedings the applicant was held in detention – a fact which require d particular diligence on the part of the authorities dealing with the case to administer justice expeditiously (see, for instance, Smirnova v. Russia , nos. 46133/99 and 48183/99, § 83, ECHR 2003-IX, and Yurtayev v. Ukraine , no. 11336/02, § 37, 31 January 2006).

61 . The Court appreciates that the criminal proceedings at issue, which concerned charges of criminal activities against fifteen defendants , were of particular complexity. It notes that the pre- trial authorities conducted a considerable number of investigative measures , and the courts had to deal with many factual and legal issues which had to be properly examined during the court hearings.

62 . On the other hand, the Court considers that these circumstances are not sufficient to justify the entire period of more than seven years and ten months for the determination of the applicant ’ s case. In particular, i t appears from the available material that a number of delays in the trial took place because of the authorities ’ failure to ensure the presence of the other defendants , witnesses and victims . A delay of almost ten months was caused by the need to set up technical recordings of the hearings (between September 2001 and July 2002) . Many times the hearings were rescheduled causing numerous delays affecting the overall length of the proceedings.

63 . Having examined all the material submitted to it, the Court is unable to conclude that the authorities handled the applicant ’ s case with the requisite diligence. The Court considers that in the instant case the length of the criminal proceedings against the applicant was excessive , and failed to meet the “reasonable time” requirement.

64 . There has accordingly been a breach of Article 6 § 1 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

65 . 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.”

Damage

66 . It appears that t he applicant claim ed 7,000,000 euros (EUR) in respect of pecuniary damage.

67 . The Government submitted that the claim was excessive and unfounded.

68 . The Court notes that the applicant failed to substantiate the pecuniary damage alleged . It therefore rejects the claim. The Court further considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the violation s in the present case, that cannot be made good by finding of violation s alone. Ruling on an equitable basis, the Court awards the applicant EUR 7,000 in respect of non-pecuniary damage.

FOR THESE REASONS, THE C OURT UNANIMOUSLY

1. Declares the applicant ’ s complaint concerning the conditions of his transportation inadmissible and the remainder of the application admissible;

2 . Holds that there has been a violation of Article 3 of the Convention;

3 . Holds that there has been a violation of Article 5 § 3 of the Convention;

4 . Holds that there has been a violation of Article 6 § 1 of the Convention;

5 . 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, EUR 7,000 ( seven thousand euros) , plus any tax that may be chargeable, in respect of non- pecuniary damage , to be converted into the currency of the respondent State at the rate applicable at the date of settlement ;

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

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 25 July 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Mark Villiger Registrar President