Communicated on 30 May 2018

FOURTH SECTION

Application no. 35121/09 Yuriy Mykhaylovych KOVAL against Ukraine lodged on 15 June 2009

STATEMENT OF FACTS

The applicant, Mr Yuriy Mykhaylovych Koval , is a Ukrainian national who was born in 1954 and lives in Mykolaiv .

At the material time the applicant held the post of President of the Mykolaiv Regional Commercial Court (“the Commercial Court”).

A. The circumstances of the case

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

1. Institution of criminal proceedings against the applicant and pre-trial investigation of the criminal case against him

On 8 November 2007 G., who was a party to a property dispute before the Commercial Court, complained to the General Prosecutor ’ s Office that the applicant was extorting a bribe from him.

On 13 November 2007 the applicant allegedly received a bribe from G.

On 15 November 2007 the General Prosecutor ’ s Office ordered the lower prosecutors to institute criminal proceedings against the applicant in that connection.

G. informed the authorities that he was going to give the applicant another bribe on 16 November 2007 and the investigators decided to catch the applicant in the act of receiving it. The police handed G. a sum of money to be given to the applicant. The money was marked with special colour agent.

According to the applicant, on 16 November 2007 he met G. in a city park in Odessa. The police secretly observed the meeting. After the meeting, while the applicant was walking through the park, he saw a man who was following him. The applicant got scared and started to run. While the applicant was crossing a drive way, a car without police markings stopped in front of him. Several people in plain clothes jumped out of the car, knocked the applicant down on the ground and beat him up inflicting bodily injuries. Some time later police officers arrived on the scene. They searched the applicant and found traces of the special colour agent on his hands and clothes. The applicant denied that he had received money from G. Subsequently, the applicant was released and went home.

On 17 November 2007 the applicant was charged with bribery and gave an undertaking not to abscond.

On 19 November 2007 a certain Ga. complained to the prosecutors that the applicant had forced him to buy certain computer equipment for the Commercial Court.

On 7 December 2007 a certain R. complained to the prosecutors that she had given bribes to the applicant in the course of 2007.

The prosecutors accordingly instituted criminal proceedings against the applicant for having received bribes from R. and for abuse of power in respect of Ga. and those proceedings were merged with those previously instituted.

2. The applicant ’ s alleged obstruction of the investigation against him

On 17 November 2007 the prosecutor dealing with the criminal case against the applicant ordered the seizure of certain case files from the commercial court. The applicant, who was still holding the post of president of that court, ordered his subordinates not to allow prosecutors ’ access to the case files in question. As a result, the files were not seized. The applicant argued that he had obstructed the seizure because the case files in question had not been related to the criminal proceedings against him.

On 13 February 2008 the prosecutors instructed the applicant to resign from the post of the court president in view of the criminal proceedings pending against him. The applicant refused to resign, because, according to him, only the President of Ukraine had the power to dismiss him.

On 25 March 2008 the applicant again ordered the Commercial Court staff not to allow seizure of the case files ordered by the investigator.

On 3 March and 15 May 2008 the Kyiv Pechersky District Court (“the Pechersky Court”) and Mykolaiv Tsentralny District Court, respectively, following prosecutors ’ requests, ordered the State Control and Audit Agency to check the financial activities of the Commercial Court and to draw up an inventory of the court ’ s property. On 14 March and 22 May 2008 the Agency could not make an inventory because the applicant refused to comply with the Agency ’ s instructions.

On 25 June 2008 the General Prosecutor ’ s Office instituted criminal proceedings against the applicant for obstructing the execution of court orders of 3 March and 15 May 2008.

On 3 July 2008 the investigator issued a new decision suspending the applicant from his post of court president but the applicant failed to resign and continued working.

On an unspecified date the prosecutor dealing with the criminal case concerning non-compliance with the court orders summoned the applicant. On 4 July 2008 the applicant sent him a written refusal to appear stating that the investigator was biased.

3. The applicant ’ s conviction and its reversal

On 4 October 2013 the Kherson Komsomolsky District Court convicted the applicant of bribery.

On 18 March 2014 the Kherson Regional Court of Appeal quashed his conviction and remitted the case to the prosecutor ’ s office for further investigation.

As of the date of the last commu nication from the applicant, 20 April 2016, the investigation in his case was pending.

4. Investigation into the applicant ’ s alleged ill-treatment on 16 November 2007

On 17 November 2007 the applicant felt unwell allegedly due to the beating on 16 November 2007 (see above) and called an ambulance. The doctors who examined the applicant noted that he had concussion and kidney contusion. In November and December the applicant underwent in-patient treatment for concussion, chest and lower back contusion, knee abrasion and fracture of the twelfth rib. Subsequently, the applicant lodged several complaints with the prosecutors alleging that those injuries had been inflicted by unspecified police officers during the incident on 16 November 2007. On several occasions the prosecutors decided not to institute criminal proceedings into the applicant ’ s complaints. The prosecutors ’ decisions were all quashed by the courts upon the applicant ’ s complaints.

On 25 August 2011 the prosecutors issued a new decision refusing to institute criminal proceedings.

On 15 December 2011 and 30 January 2012 the Pechersky Court and the Kyiv Court of Appeal rejected the applicant ’ s appeals against that decision. The applicant ’ s appeal on points of law was rejected for non-compliance with procedural formalities.

5. The applicant ’ s arrest and transportation to Mykolaiv

On 8 December 2008 the prosecutors, relying on the Rules of Procedure of the Verkhovna Rada (the Parliament), requested the President of the Supreme Court to support their request for the applicant ’ s arrest.

On 12 December 2008 the President of the Supreme Court forwarded the request to the Parliament, stating that he supported (“ підтримав ”) the request.

On 18 December 2008 the Parliament gave its consent for the applicant ’ s arrest.

On 23 December 2008 the Pechersky Court, in the presence of the applicant and his lawyer, ordered the applicant ’ s pre-trial detention at the Mykolaiv pre-trial detention centre (“the SIZO”) . Having noted, in particular, that the applicant had been charged with bribery and abuse of power, the court found that he had not appeared before the investigator when summoned and had obstructed the investigation.

From 10.00 a.m. on 23 December 2008 and until the end of the day the applicant was detained handcuffed in guarded premises of the Pechersky Court. During the next twelve hours, the applicant, who was dressed in a suit and handcuffed to a van fixture, was transported to Mykolaiv in an unheated van while the air temperature outside was allegedly below freezing. During the trip he had no opportunity to eat, sleep or wash up. The applicant was escorted by seven armed police officers, one of which had taken part in the incident on 16 November 2007 and knew that the applicant sought his criminal prosecution (see above). The handcuffs were taken off only once for a few minutes.

The applicant complained to the prosecutors about the conditions of his transportation from Kyiv to Mykolaiv on 23 December 2009.

On 24 February 2015 the prosecutor ’ s office discontinued investigation in this respect for lack of a corpus delicti in the relevant officers ’ actions. On 29 February 2016 the Mykolaiv Tsentralny District Court quashed the prosecutor ’ s office ’ s decision and remitted the case for further investigation. There is no information in the case file concerning any further progress of this investigation.

6. Proceedings for review of the applicant ’ s detention

On 26 December 2008 the Kyiv Court of Appeal, having considered the applicant ’ s appeal in his absence but in the presence of his lawyer, upheld the detention order of 23 December 2008 (see above).

On 18 February 2009 the Pechersky Court examined the prosecutor ’ s request for extension of the applicant ’ s detention to four months. The applicant and his lawyers were not present, as they had not been informed about the hearing and had not been familiarised with the prosecutors ’ request. According to a copy of the court decision submitted by the applicant, at that hearing he was represented by S., who was a lawyer. The applicant states that he had not retained that lawyer and that she was an associate of the applicant ’ s lawyers who, having learned about the hearing “by chance” just hours before it and being unable to attend, sent S. to the court with a request to adjourn the hearing. Instead, the court put down S. ’ s name as that of the applicant ’ s lawyer even though she had made no submissions on his behalf. The court allowed the prosecutor ’ s request.

In their appeal the applicants ’ lawyers, K. and F., raised, inter alia , the matter of the applicant ’ s representation before the first-instance court, in terms set out in the previous paragraph.

On 25 February 2009 the Kyiv Court of Appeal upheld the decision of 18 February 2009 in the presence of the applicant ’ s lawyers. It had not commented on their allegations concerning the applicant ’ s representation at the first-instance court ’ s hearing.

The applicant ’ s detention was further extended by the Kyiv Court of Appeal on 21 April 2009 to six months and on 16 June 2009 to eight months. On 16 June 2009 the Court of Appeal held a hearing in the presence of a prosecutor. No representative of defence was present.

On 19 February 2010 the Kherson Court of Appeal released the applicant on an undertaking not to abscond, requiring him not to leave his place of registered residence without the investigating authority ’ s permission.

7. Conditions of the applicant ’ s detention at the SIZO

From early January 2009 and until his release on 19 February 2010 the applicant was detained in the Mykolaiv SIZO.

Due to the insufficient heating in his cell, which measured five square meters, its walls and the bedding were dump. According to the applicant, adequate food and personal hygiene products had to be provided by his relatives as the food provided by the detention centre was of poor quality and the personal hygiene products were unavailable there.

On an unspecified date the applicant was transferred to an eight-square-meter cell, which he shared with a detainee who smoked in his presence. Ventilation was inadequate.

B. Relevant domestic law

Provisions of the domestic law set out below refer to the legislation as it stood at the material time, December 2008.

Article 126 of the Constitution provided that a judge could not be arrested or placed in pre-trial detention without the Parliament ’ s consent.

Rule 218 of the Parliament ’ s Rules of Procedure ( Регламент Верховної Ради ) of 19 September 2008 established the procedure for submission and approval of requests for pre-trial detention of judges. Such a request had to be prepared by the investigating or adjudicating body and submitted for prior approval to the President of the Supreme Court. The President of the Supreme Court had the power to submit the request to the Parliament. The request had to be sufficiently reasoned and contain concrete facts and evidence demonstrating that the judge concerned had committed an act or omission punishable by the Criminal Code. The necessity of the judge ’ s detention had to be clearly substantiated.

Section 33 of the Status of Judges Act of 1992 provided that disciplinary proceedings against a judge could be initiated by inter alia the President of the Supreme Court.

Section 50 of the Judiciary Act of 2002 conferred on the President of the Supreme Court the power to introduce proposals concerning appointment, election and dismissal of judges, appointment of judges on administrative positions, proposes qualification commission to provide an opinion concerning possibility of election or appointment of a judge.

COMPLAINTS

1. The applicant complains under Articles 3 and 13 of the Convention that he was ill-treated by the police on 16 November 2007 and that there was no effective investigation in that respect.

2. Under Article 3 of the Convention he further complains of: ( i ) the conditions of his detention and transportation on 23 and 24 December 2008, and (ii) the material conditions of his detention in the Mykolaiv SIZO.

3. Relying on Articles 5 § 1 and 6 of the Convention the applicant complains that the domestic courts which decided on his detention lacked impartiality on account of the fact that the request for his pre-trial detention had been supported by the President of the Supreme Court.

4. Relying on Article 5 § 3 and 6 §§ 1 and 2 of the Convention, the applicant complains that neither he nor his lawyers were informed of the pre-trial detention hearings on 18 February, 21 April and 16 June 2009 and that the defence could not prepare and present counterarguments to those presented by the prosecutors, notably because the defence was not given an opportunity to have knowledge of the prosecutors ’ requests to extend detention.

5. The applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him has been excessive .

6. Referring to Article 6 § 1 of the Convention, the applicant complains that his liberty of movement has been restricted on account of the undertaking not to abscond imposed on him, which remained in place for a considerable period of time.

QUESTIONS

1. Was the applicant subjected to torture, inhuman or degrading treatment on 16 November 2007, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture, inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, ECHR 2000 ‑ IV), was the relevant investigation by the domestic authorities in breach of Article 3 of the Convention?

3. Was the applicant subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention, on account of the conditions of his detention and transportation on 23 and 24 December 2008?

4. Did the conditions of the applicant ’ s detention in the Mykolaiv pre ‑ trial detention centre (SIZO), in particular but not limited to the personal space available in the cell and the time allowed outside the cell, amount to inhuman or degrading treatment, within the meaning of Article 3 of the Convention?

5. Did the courts which ordered the applicant ’ s arrest and pre-trial detention and which extended his detention meet the requirements of impartiality under Article 5 §§ 3 and 4 of the Convention respectively, given that the President of the Supreme Court had supported the request for the applicant ’ s detention?

6. In light of the applicant ’ s allegation that neither he nor his lawyers were informed about pre-trial detention hearings held on 18 February, 21 April and 16 June 2009 and could not familiarise themselves with the prosecutor ’ s arguments concerning necessity for extension of his detention while prosecutors were present at those hearings, was the procedure for review of the lawfulness of the applicant ’ s detention in conformity with Article 5 § 4 of the Convention?

7. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

8. Has there been a restriction on the applicant ’ s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?