Communicated on 4 April 2018

FOURTH SECTION

Application no. 46196/11 Viktoriya Gennadiyevna SMILYANSKAYA against Ukraine lodged on 15 July 2011

STATEMENT OF FACTS

The applicant, Ms Viktoriya Gennadiyevna Smilyanskaya , is a Ukrainian national who was born in 1969 and lives in Kharkiv. She is represented before the Court by Ms Y.V. Zayikina , lawyer practising in Kharkiv.

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

A. Criminal proceedings against the applicant

On 17 January 2011 the applicant was arrested and placed in police custody on suspicion of involvement in the illegal purchase, storage, and trafficking of drugs. The investigator drew up a report on her arrest, making a general reference to Article 106 § 2 and Article 115 of the Code of Criminal Procedure.

According to the official report, the applicant had been arrested on the grounds that “eyewitnesses, including victims, directly identified [her] as the one who had committed the offence, and that there were other reasons giving grounds for arrest”. Her arrest was justified by the necessity to prevent her evading justice or obstructing the establishment of the truth, and to ensure the execution of an eventual court judgment.

The arrest report had the following description of the facts giving rise to the prosecution:

“... on 18 August 2010 [the applicant], acting deliberately and unlawfully as a member of an organised group in coordination with S., G., and Sh., took part in the purchase, storage, and trafficking of poppy straw.”

On 20 January 2011 the Kyivskyi District Court of Kharkiv extended the applicant ’ s police custody to ten days with a view to obtaining an assessment of her personality.

On 27 January 2011 it ordered her detention for two months. The decision stated that she had been accused of a serious crime and could otherwise escape and hinder the investigation or continue with her criminal activity. No further details about those reasons were provided by the court.

On 16 March, 27 April, and 16 May 2011 the applicant applied for release. The court further extended her detention for three, four, and five months respectively. Its decisions stated that she had been accused of a serious crime and that no other reasons which could justify changing the preventive measure had been presented to the court.

On 16 March and 27 April 2011 the court, when considering whether to extend the applicant ’ s detention, dismissed her requests for release. No explanation was provided in its decisions. According to the applicant, her request for release of 16 May 2011 remained unanswered by the court.

On 1 November 2011 the court, having regard to the applicant ’ s state of health, released her on an undertaking not to abscond.

B. Conditions of detention in the Kharkiv SIZO

According to the applicant, on 2 February 2011 she was placed in the Kharkiv Pre-trial Detention Centre (“the SIZO”).

In the SIZO the applicant was kept in cell no. 412 (from 2 February to 27 July 2011 and from 12 August to 1 November 2011) and in cell no. 409 (from 1 to 12 August 2011). Cell no. 412 measured 52.1 sq.m . and housed twelve detainees, while cell no. 409 measured 18.1 sq.m . and housed twenty-two detainees. The cells were damp and lacked ventilation. Most detainees smoked and the applicant, an asthma sufferer, experienced breathing difficulties. Outside walks lasted between ten to thirty minutes per day in a small yard measuring between 7 and 10 sq.m . The sanitary facilities were in the same space as the living area, and were not fully partitioned. Nutrition was poor and hygiene conditions were inadequate. Detainees did not have sufficient access to hot water and were allowed to shower only once or sometimes twice per week. An artificial light was switched on in the cells day and night. Despite numerous requests to the SIZO and prosecution authorities, the applicant ’ s conditions of detention did not improve and she was not transferred to a cell with non-smokers. Similarly, she was not provided with appropriate nutrition.

The applicant submitted copies of statements written by Ms Sh., a former detainee who had allegedly shared cell no. 412 with her between 11 May and 24 June 2011, and by Ms T., a former SIZO officer. They both confirmed the applicant ’ s description of the conditions of her detention.

C. Medical care provided to the applicant

According to the material in the case file, the applicant has suffered from asthma since 1980.

On the morning of 17 January 2011, while at liberty, she suffered a major asthma attacks and was admitted to the Kharkiv City hospital for treatment. That evening, after her state of health had improved, she was discharged and left the hospital accompanied by police officers, who then arrested her.

On 20 February 2011 the applicant complained to the Prosecutor General ’ s Office that she had not been receiving asthma treatment in the SIZO.

On 17 March 2011 the investigator dealing with the applicant ’ s criminal case ordered a forensic examination with a view to establishing her state of health and the possibility of her being provided with the relevant medical treatment at the SIZO.

According to the results of the forensic examination of 6 April 2011, the applicant suffered from step 4 asthma (the most severe form), chronic obstructive pulmonary disease, emphysema, pulmonary insufficiency, pneumonosclerosis and chronic cor pulmonale . The forensic expert concluded that she should be examined at a specialist pulmonary medical institution outside the SIZO.

On 4 and 10 August and 5, 8, 15, 18 and 28 October 2011 the applicant asked the SIZO administration to provide her with asthma treatment.

According to the applicant, she was not given a medical examination or treatment while in custody and her applications sent to the Prosecutor General ’ s Office and SIZO administration remained unanswered.

D. Relevant domestic law

The relevant provisions of the Constitution and the Code of Criminal Procedure of 28 December 1960 can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04, §§ 32-33, 9 November 2010).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that the conditions of her detention in the Kharkiv SIZO were poor. She also complains that she was not provided with adequate medical treatment and assistance while in detention.

2. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complains that:

(i) her arrest by the police on 17 January 2011 was arbitrary;

(ii) the court ’ s decision of 20 January 2011 extending her police custody to ten days in order to obtain an assessment of her personality lacked justification; and

(iii) the domestic court decisions of 27 January, 16 March, 27 April, and 16 May 2011 ordering her continued detention were arbitrary and lacked reasoning.

3. Relying on Article 5 § 4 of the Convention, the applicant complains that the domestic courts failed to properly examine her requests for release lodged on 16 March, 27 April, and 16 May 2011 .

4. Lastly, the applicant complains under Article 5 § 5 of the Convention that she had no enforceable right to compensation for her allegedly arbitrary detention.

QUESTIONS TO THE PARTIES

1. Did the material conditions of the applicant ’ s detention in the Kharkiv SIZO from January to November 2011 amount to a breach of Article 3 of the Convention?

2. Was the medical treatment and assistance provided to the applicant in detention in compliance with the requirements of Article 3 of the Convention?

3. Were the applicant ’ s arrest, detention between 17 and 27 January and subsequent detention ordered by the courts on 16 March, 27 April and 16 May 2011 free from arbitrariness and based on sufficient reasons for the purposes of Article 5 §§ 1 and 3 of the Convention (see, for example, Khayredinov v. Ukraine , no. 38717/04, § § 27-31, 14 October 2010, Korneykova v. Ukraine , no. 39884/05, §§ 38, 43 and 47-48, 19 January 2012, Barilo v. Ukraine , no. 9607/06, § 93, 16 May 2013, and Kondratyev v. Ukraine , no. 5203/09, §§ 109-112, 15 December 2011)?

4. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her pre-trial detention, as required by Article 5 § 4 of the Convention?

5. Did the applicant have an effective and enforceable right to compensation for her alleged detention in contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention (see, for example, Korneykova , cited above, §§ 79-82, and Taran v. Ukraine , no. 31898/06 , §§ 87-90, 17 October 2013 )?