Communicated on 10 July 2018

FOURTH SECTION

Application no. 62209/17 Vadym Anatoliyovych MELNYK against Ukraine lodged on 15 August 2017

STATEMENT OF FACTS

The applicant, Mr Vadym Anatoliyovych Melnyk , is a Ukrainian national who was born in 1970 and is detained in the Cherkassy pre-trial detention centre (“the SIZO”). He is represented before the Court by Mr O.S. Shadrin , a lawyer practising in Kharkiv .

A. The circumstances of the case

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

1. The applicant ’ s arrest and detention

On 16 May 2017 the applicant was arrested on suspicion of organising the kidnapping and murder of Mr G., a journalist and activist of the “ Euromaidan ” revolution.

On 17 May 2017 the Prydniprovskyy District Court of Cherkassy ordered the applicant ’ s detention on remand. On 30 May 2017 the Cherkassy Regional Court of Appeal quashed the above decision and released the applicant, having applied a non-custodial preventive measure to him.

According to the applicant, the pronouncement of the ruling of the Court of Appeal provoked anger among the public, who effectively trapped the applicant in the cage in which he had been held during the hearing.

The applicant submitted a DVD with a video record of the events that had taken place in the hearing room of the Court of Appeal on 30 May 2017 after the pronunciation of the decision on his release. As can be seen from the film, immediately after the pronunciation of the decision a group of people interrupted the court session and started behaving aggressively towards the applicant and the judges. They shouted and threatened the applicant and the panel of judges with assault. The record shows that the police officers who were present at the court room did not attempt to stop the incident and ensure the applicant ’ s release.

Shortly after that (approximately two hours later), the investigator “re-arrested” the applicant, who had remained in the cage all that time. According to the arrest report, the applicant ’ s arrest was grounded on the following consideration:

“... if immediately after an offence has been committed, eyewitnesses, including victims, or cumulative marks [found] on the body [of a person], on [his/her] clothing or on the scene of the crime, indicate that that particular person has just committed the offence.”

On 31 May 2017 the applicant lodged an application with a local court, claiming a violation of his right to liberty during the events which had taken place in the Court of Appeal on 30 May 2017. He referred in particular to fact that he had been trapped by the group of private persons in the hearing room of the Court of Appeal, and that the investigator had failed to comply with the requirements of domestic law and the Convention in the course of his re-arrest.

On 31 May 2017 the local court dismissed that application, finding that the applicant had been detained on the basis of the arrest report of 30 May 2017. The local court did not address the applicant ’ s arguments in respect of his grievances concerning being trapped in the hearing room and concerning the alleged unlawfulness of his arrest by the investigator.

On 1 June 2017 the Prydniprovskyy District Court of Cherkassy again ordered the applicant ’ s detention on remand.

On 12 June 2017 the Court of Appeal upheld the mentioned decision. The Court of Appeal found in its ruling that the applicant ’ s detention from the moment of his arrest by the investigator on 30 May until 1 June 2017, when the local court ordered his continued detention, had not been in compliance with domestic law. The Court of Appeal further decided that that fact could not allow the applicant ’ s release since, as of 12 June 2017 he had been detained on the basis of the court decision of 1 June 2017.

On 26 July 2017 the trial court committed the applicant for trial and extended his detention on remand for a further sixty days. The trial court referred to the seriousness of the charges against the applicant, the risk of his absconding, and the risk of unlawful influence on the victim and witnesses. The trial court did not advance any more details explaining its decision.

2. Medical treatment provided to the applicant in detention

On 26 July 2017 the applicant was placed in the SIZO.

According to the case-file material, on admission to the SIZO the applicant informed the penal authorities that he had residual effects of a head injury that had occurred in 2009.

On 31 October 2017 the applicant ’ s lawyer applied to the Cherkasy Sosnivskyy District Court for release on health grounds. On the same day the Sosnivskyy Court rejected the application, but enquired with the penal authorities about the applicant ’ s state of health and the possibility of his continued detention in the SIZO.

On 16 November 2017 the SIZO governor informed the Sosnivskyy Court that the following information had been established on the basis of the applicant ’ s medical file:

“[The applicant] sustained a head injury in 2009, in respect of which he underwent medical treatment and monitoring in [the Romodanov Neurosurgery Institute]. As of today, [the applicant] is undergoing inpatient medical treatment in the [SIZO ’ s] medical unit with the following diagnoses: residual effects of the head injury of 2009 in the form of an old fracture of the parietal bone on the right side (as shown by the MRI of 25 October 2017), with persistent cephalic disorder originating from liquor-dynamic headaches, light external forehead-vertex hydrocephaly, convulsive episodes (once or twice per month) with medium-frequency attacks; atherosclerotic cardiovascular disease; hypertension; and sinus tachycardia. During [the applicant ’ s] detention in the SIZO, an ambulance was called for him [once] on 9 June 2017, because of a sudden deterioration of his health. As of today it has been recommended that the applicant be admitted to a cardiological department in order to re-check his diagnoses, and to establish the correct medicinal treatment and inpatient treatment in a neurological department. Having regard to the fact that [the applicant] had earlier been monitored by [the Romodanov Neurosurgery Institute], given the absence of [similar] medical institutions in Cherkasy and bearing in mind the recommendations made by a doctor of [the Romodanov Neurosurgery Institute], specifically: ‘ Given the age of the injury (2009), surgery might be feasible in the event of focused convulsions confirmed by electroencephalography) ’ , and having regard to the electroencephalography results, it appears appropriate that [the applicant] undergo a repeat examination by a doctor of [the Romodanov Neurosurgery Institute] in order to set out his course of treatment.”

The penal authorities also observed that, under the applicable legal provisions, the SIZO ’ s medical unit was suitable for outpatient medical treatment and monitoring, as well as for primary medical care.

On 21 November 2017 the Sosnivskyy Court rejected that application by a final ruling, having concluded that, according to the information note by the SIZO governor of 16 November 2017, the applicant did not require medical treatment outside the SIZO.

On 11 January 2018 the applicant was examined in the SIZO by a private cardiologist, who issued a conclusion that the former was suffering from stable third-degree stenocardia , cardiac myopathy, second-degree hypertensive disease, the residual effects of the head injury of 2009 in the form of an old fracture of the parietal bone of the right side , with persistent cephalic disorder originating from liquor-dynamic headaches, and light external forehead-vertex hydrocephaly . He was prescribed various medicines in respect of the above diseases. The applicant was also prescribed immediate inpatient treatment at a medical institution with cardiac and neurological specialisation with a view to checking the diagnosis and the provision of further treatment.

On 16 January 2018 a private cardiologist issued another conclusion, which was based on the previous one and on the results of recent medical tests had performed on the applicant, and some older medical documentation concerning his state of health. According to that conclusion, the previous diagnosis of the applicant was confirmed. In addition to the diagnosis of 11 January 2018, he was diagnosed with chronic kidney disease in the exacerbation phase, and chronic hepatitis. The applicant ’ s state of health was classified as close to serious and it was stated that he required immediate hospitalisation at the medical institution with cardiac and neurological specialisation with a view to clarifying the diagnosis and provision of further treatment. The applicant required a number of tests and consultations to be performed in the specialised medical institution.

On 17 January the penal authorities provided the applicant ’ s lawyer with information about his state of health, which was similar to that already provided by them on 16 November 2017. The applicant was placed in the SIZO medical unit and was being provided with inpatient treatment. The nature of treatment was not specified. In addition, t he penal authorities noted without any specification that the applicant ’ s general state of heath was tending towards deterioration.

From 1 to 9 February 2018 the applicant underwent an examination and treatment at Cherkasy Municipal Hospital. As a result of that examination, the applicant was diagnosed with ischemic heart disease, angina, hypertension of the heart, and discirculatory hypertensive encephalopathy. Medication and recommendations for further medical care were prescribed to him.

Since 9 February 2018 the applicant has been undergoing inpatient treatment in the SIZO medical unit.

According to information from the penal authorities dated 2 March 2018 and addressed to the Agent of the Government of Ukraine to the European Court of Human Rights, the SIZO is not able to implement recommendations given by the doctors of Cherkasy Municipal Hospital in view of the lack of the necessary equipment and the absence of a cardiologist and a neurologist on its staff.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure, 2012, notably Article 206, can be found in the judgment in the case of Chanyev v. Ukraine (no. 46193/13 , § 18, 9 October 2014).

The relevant provisions of the Compensation Act (1994), as worded at the material time, are quoted in the judgment in the case of Yaroshovets and Others v. Ukraine (nos. 74820/10 and 4 others, §§ 62-63, 3 December 2015).

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was not given access to appropriate medical assistance while detained in the Cherkassy pre-trial detention centre.

Relying on Article 5 § 1 (c) of the Convention, the applicant complains that his “re-arrest” by the investigator in the hearing room of the Cherkassy Regional Court of Appeal on 30 May 2017 was arbitrary.

Relying on Article 5 § 4 of the Convention, the applicant complains that the domestic courts failed to conduct a proper examination of his application of 31 May 2017 in respect of the lawfulness of his detention on 30 May 2017.

Lastly, the applicant complains, relying on Article 6 § 1 of the Convention, that his retention in the hearing room of the Cherkassy Regional Court of Appeal between the moment of the pronouncement of the decision of the Court of Appeal on his release as a result of an incident involving the public was arbitrary and unlawful. He further complains, under the same provision, that the court ’ s decision of 26 July 2017 extending his detention pending trial lacked justification.

QUESTIONS TO THE PARTIES

1. Have the medical treatment and assistance provided to the applicant in detention been in compliance with the requirements of Article 3 of the Convention?

2. In respect of the events in the hearing room of the Court of Appeal on 30 May 2017, was the holding of the applicant in custody between the moment of pronunciation of the decision of the Court of Appeal on the applicant ’ s release and his further re-arrest in compliance with Article 5 § 1 of the Convention?

3. Did the decision of the Court of Appeal of 12 June 2017 declaring the applicant ’ s detention between 30 May and 1 June 2017 unlawful, constitute a basis for him to claim compensation? The Government are invited to provide the Court with the relevant case-law examples showing the existence and effectiveness of a domestic remedy in the applicant ’ s case.

4. Was the applicant ’ s “re-arrest” on 30 May 2017 free from arbitrariness and based on sufficient reason s for the purposes of Article 5 § 1 of the Convention (see Makarenko v. Ukraine , no. 622/11, §§ 73-76, 30 January 2018)?

5. Was the court decision of 26 July 2017 ordering the applicant ’ s continued detention free from arbitrariness and based on sufficient reasons for the purposes of Article 5 § 3 of the Convention (see, for example, Buzadji v. the Republic of Moldova [GC], no. 23755/07 , §§ 84 et seq. , 5 July 2016 ?

6. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his pre-trial detention, as required by Article 5 § 4 of the Convention? In particular, does the procedure provided for by Article 206 of the Code of Criminal Procedure satisfy the requirements of Article 5 § 4 of the Convention?