Communicated on 1 September 2016 and 18 February 2017

FIFTH SECTION

Application no. 38718/16 Alla Aleksandrovna ALEKSANDROVSKAYA against Ukraine lodged on 6 July 2016

STATEMENT OF FACTS

The applicant, Ms Alla Aleksandrovna Aleksandrovskaya , is a Ukrainian national, who was born in 1948 and lives in Kharkiv . She is represented before the Court by Mr M. Tarakhkalo , a lawyer practising in Kyiv.

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

On 28 June 2016, in the course of the search in the applicant ’ s apartment, she was arrested on suspicion of separatism (Article 110 of the Criminal Code) and abuse of office (Article 364 of the Criminal Court). In the arrest report of the same date, it was noted that the applicant was arrested pursuant to Article 208 § 1 (2) of the Code of Criminal Procedure, according to which a suspect can be arrested without a court decision if immediately after a crime was committed evidence is found demonstrating that he or she committed the crime. The report contained no details as to such evidence.

The next day, the investigator lodged with a district court a request for the applicant ’ s continued detention for sixty days. On 30 June 2016 the court allowed the investigator ’ s request. It refused to examine the applicant ’ s and her lawyers ’ complaints of the unlawfulness of her arrest, finding that they were to be examined by the prosecutors.

On the same day the applicant was transferred to the Kharkiv Temporary Detention Facility No. 27 (“the SIZO”). On her arrival she was examined by the SIZO doctor who characterised her medical condition as satisfactory.

The applicant ’ s lawyers ’ appeals of 4 and 5 July 2016 against the decision of 30 June 2016 were rejected as unsubstantiated by the Kharkiv Court of Appeal on 22 July 2016.

On 3 August 2016 the applicant ’ s lawyers requested the district court to release the applicant, arguing inter alia that she was in a poor medical condition. On 5 August 2016 the request was refused, as the court found no ground to change the applicant ’ s preventive measure.

The applicant ’ s continued detention was further authorised by the court decisions of 26 August, 9 and 27 September 2016. The applicant ’ s lawyers ’ appeals of 30 and 31 August 2016 against the decision of 26 August 2016 were rejected on 5 September; their appeals of 12 and 14 September 2016 against the decision of 9 September 2016 were partly allowed on 22 September 2016, though the applicant was ordered to remain in detention.

In the court decisions concerning the applicant ’ s detention it was noted, inter alia, that she was charged with serious crimes; that there was a risk that she might evade the investigation and trial, as her son permanently resided in Russia; and that she was receiving adequate medical assistance while in detention. Some of the decisions also made reference to Article 176 § 5 of the Code of Criminal Procedure, according to which in cases relating to specific charges, including those under Article 110 of the Criminal Code, only detention can be applied as a preventive measure. No possibility of applying non-custodial preventive measures in the applicant ’ s case was examined in the court decisions.

On 13 October 2016 the Kharkiv Court of Appeal, having examined the applicant ’ s lawyers ’ appeals of 1 and 3 October 2016 against the decision of 27 September 2016, ordered the applicant ’ s release from detention and placed her under 24-hour continuous house arrest. Relying essentially on Articles 2, 3 and 5 of the Convention, the court held that the applicant ’ s continued detention could adversely affect her medical situation and endanger her life, and that it had not been persuasively demonstrated that there was still a risk that she might evade or hinder the ongoing investigation.

The applicant, who has been suffering from different diseases, including diffuse cardiosclerosis, ampliation of atriums, hypertensive disease, arrhythmia and dyscirculatory encephalopathy, states that no adequate medical assistance was provided to her while in detention. According to her, as she is placed under round-the-clock house arrest, she cannot be provided with the medical treatment she needs.

COMPLAINTS

1. Relying on Articles 2 and 3 of the Convention, the applicant complains that she was not provided with adequate medical treatment during her detention.

2. In her submissions dated 28 November 2016 the applicant also complains, essentially relying on Article 3, that when ordering her to stay round-the-clock at her flat (as a preventive measure) the courts failed to take into account her medical needs. According to the applicant, the terms of her house arrest prevent her from receiving the medical assistance she needs.

3. Relying on Article 3 of the Convention, the applicant further complains ( i ) that during the court hearings in her case between 29 June and 22 September 2016 she was detained in metal cages; (ii) that she took part in court hearings on 29 and 30 June 2016 while being in poor medical condition and exposed to high temperatures in court rooms with poor ventilation and air-conditioning; and (iii) that on 12 July 2016 handcuffs were applied to her while being escorted to a court room.

4. Relying on Article 13 of the Convention, the applicant complains that no effective remedy is available for her above complaints under Article 3 regarding the conditions in which she took part in court hearings and the allegedly inadequate medical assistance in detention.

5. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complains ( i ) that her arrest of 28 June 2016 was not based on a court decision; (ii) that it was arbitrary; (iii) that the Ukrainian Code of Criminal Procedure provides for no alternative preventive measures in cases concerning the charges of separatism; and (iv) that the court decisions authorising her continued detention were not based on a thorough assessment of all the relevant circumstances, including her age, health condition and social status.

6. Relying on Article 5 § 3 of the Convention, the applicant further complains ( i ) that the lawfulness of her arrest and continued detention was not reviewed promptly; and (ii) that there was no possibility to appeal against some of the court decisions relating to her detention.

7. Relying on Article 5 § 3 of the Convention taken in conjunction with Article 14, the applicant complains that Article 176 § 5 of the Code of Criminal Procedure is discriminatory vis-à-vis those who are suspected of the crimes not mentioned in that provision.

8. Relying on Article 5 § 4 of the Convention, the applicant complains ( i ) that the courts refused to review the lawfulness of her arrest; and (ii) that the lawfulness of her detention for several hours on 9 September 2016, allegedly beyond the initially permitted period, was not examined by the courts.

9. Relying on Article 5 § 5 of the Convention, the applicant complains that no compensation is available at the domestic level for the alleged violations of Article 5, as set out above.

10. Relying on Article 8 of the Convention, the applicant complains that her sister-in-law was not given leave to visit her in detention in July 2016, despite her having made a formal request in that regard. The applicant complained to the domestic courts, but her complaint was not examined on the merits.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to her complaints about the conditions in which she took part in court hearings between 29 June and 22 September 2016?

2. Has the applicant had access to adequate medical assistance as regards her health problems while under house arrest, as required by Article 3 of the Convention?

3. Has there been a breach of Article 5 §§ 1, 3 and 4 of the Convention, having regard to the applicant ’ s complaints under those provisions regarding her detention between 28 June and 13 October 2016?

The Government are invited to address the applicant ’ s specific complaints under those provisions as set out in her application form, including the applicant ’ s arguments that the investigator gave no explanation to justify the applicant ’ s arrest on 28 June 2016 without a court decision; that the domestic courts refused to review the lawfulness of the applicant ’ s arrest; that there were excessive delays in the examination of the applicant ’ s appeals against the decisions authorising her continued detention; that the courts did not examine whether non-custodial preventive measures could be applied in the applicant ’ s case; and that when deciding on the applicant ’ s continued detention the courts made no thorough assessment of all the relevant circumstances, including the applicant ’ s age, health condition and social status.

4. Did the applicant have an effective and enforceable right to compensation for her detention in alleged contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention?

5. Has there been a violation of Article 8 of the Convention on account of the applicant ’ s alleged inability to have her sister-in-law visit her in detention?

6. Did the applicant have at her disposal an effective domestic remedy, as required by Article 13 of the Convention, for her above complaints under Article 3 regarding the conditions in which she took part in court hearings and also for her complaints under Article 3 of inadequate medical assistance in detention which were comm unicated to the Government on 2 September 2016?

7. Has the applicant suffered discrimination in the enjoyment of her rights under Article 5 § 3, contrary to Article 14 of the Convention, having regard to her complaint that, by operation of Article 176 § 5 of the Code of Criminal Procedure, the domestic courts were prevented from examining whether non-custodial preventive measures could be applied in her case?