FIFTH SECTION

Application no. 53865/11 Sergey Viktorovich KUSHCH against Ukraine lodged on 17 August 2011

STATEMENT OF FACTS

The applicant, Mr Sergiy Viktorovych Kushch, is a Ukrainian national who was born in 1969 and is currently detained in Kyiv Pre-Trial Detention Centre no. 13 (SIZO). He is represented before the Court by Mr A.P. Bushchenko, 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.

Before his detention the applicant held the post of director of a joint-stock company which had won a tender for reconstruction of a city tram line in Kyiv financed from the local budget.

1. Criminal proceedings against the applicant and his detention

On 20 July 2010 criminal proceedings were instituted in respect of the applicant, as well as two other persons, on suspicion of municipal property embezzlement in particularly large amounts in the context of the aforementioned reconstruction works.

On 21 July 2010 the investigator of the Police Department for Combating Organised Crime telephoned the applicant and invited him to appear to give some explanations. The applicant complied and was arrested. The investigator substantiated this decision with the standard wording of the arrest report template, which read as follows:

“the eyewitnesses, including the victims, directly indicate this person as the one who committed the crime”.

As motives for the arrest, the report used the following standard wording:

“Prevention of absconding from the investigation and court and ensuring execution of a verdict.

Prevention of hindrances to the establishment of truth in a criminal case.”

On 22 July 2010 the applicant ’ s lawyer challenged his client ’ s arrest as unlawful before the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court ”). The investigator, in turn, applied to the court for the applicant ’ s pre-trial detention.

On 23 July 2010 a judge of the Golosiyivskyy Court extended the term of the applicant ’ s arrest to ten days. The reasoning was as follows:

“Having studied the materials of the criminal case, having heard the explanations of the suspect, the opinion of the prosecutor who supported [the investigator ’ s] application and requested it to be granted, as well as the position of the defender who objected to that application, having regard to the personality of the suspect who is suspected of having committed a particularly serious offence punishable by imprisonment of up to twelve years, bearing in mind that the investigation authorities have not collected sufficient information characterising the personality of the suspect and that no charges have been advanced against him, I find it necessary to extend the arrest of [the applicant] to ten days so that sufficient information be collected for the examination of the application in substance.

Furthermore, as regards the [applicant ’ s] complaint about the unlawfulness of [his] arrest, it has been established that the [investigator] arrested him in compliance with Article 106 of the Code of Criminal Procedure; there are therefore no grounds for allowing this complaint.

In the light of the foregoing and with the purpose of prevention of attempts by the suspect to abscond from the investigation and trial, to hinder the establishment of truth in the criminal case, and in order to ensure compliance with procedural decisions, being guided by Article 165-2 of the Code of Criminal Procedure, the court –

HAS RULED:

To extend the term of [the applicant ’ s] arrest to ten days ... .

To recognise as lawful [his] arrest and to reject [the lawyer ’ s] complaint [in that regard] ... ”

On 28 July 2010 a charge of embezzlement in particularly large amounts was brought against the applicant.

On 29 July 2010 the Golosiyivskyy Court ordered his pre-trial detention (for two months) as a preventive measure pending trial. Its reasoning was as follows:

“Having studied the materials of the criminal case, having heard the explanations of the suspect, the opinion of the prosecutor who supported [the investigator ’ s] application and requested it to be granted, as well as the position of the defender who objected to it, the court considers that the application should be granted for the following reasons.

In choosing the preventive measure the court takes into consideration the personality of the suspect who is suspected of having committed a particularly serious offence punishable by imprisonment of up to twelve years, as well as his attitude to the committed offence. Furthermore, no information has been submitted to the court that the [applicant] cannot be held in conditions of a pre-trial detention facility.

In the light of the foregoing and with the purpose of prevention of attempts by the suspect to abscond from the investigation and trial, to hinder the establishment of truth in the criminal case, and in order to ensure compliance with procedural decisions, being guided by Articles 148, 155, 165 and 165-2 of the Code of Criminal Procedure, the court [orders the applicant ’ s pre-trial detention].”

The applicant appealed. There is however no information in the case file regarding the examination of his appeal.

On 16 September 2010 the Golosiyivskyy Court extended the applicant ’ s pre-trial detention to four months. It repeated the reasoning of its ruling of 29 July 2010, having added that considerable volume of investigative measures remained yet to be conducted.

The applicant appealed submitting that the deprivation of liberty was the most restrictive preventive measure unnecessary in his case. He criticised the reasoning of the first-instance court as being formalistic and failing to take into consideration the specific circumstances of the case. The case file contains no information as to the examination of this appeal.

On 19 November 2010 the Kyiv City Court of Appeal (“the Court of Appeal”), sitting as a court of first instance, allowed another application of the investigator for extension of the applicant ’ s pre-trial detention, this time to five months. It explained this decision by the necessity to conduct additional investigative measure. As to the applicant ’ s request for release, it noted the following:

“As regards [the applicant ’ s] request for the change of the preventive measure from detention to an undertaking not to abscond, it should be rejected, as the circumstances indicated in this request have already been verified by the court when the preventive measure was chosen in respect of [the applicant] and its grounds remain valid.”

On 26 November 2010 a criminal case was opened in respect of the applicant on suspicion of another episode of embezzlement. It was joined to the first criminal case.

On 3 December 2010 the investigator applied to the Court of Appeal for extension of the applicant ’ s pre-trial detention to seven months explaining it by the necessity to carry out further investigative measures.

The applicant objected submitting, inter alia , that the investigative measures with his participation had been limited to taking samples of his signature and handwriting, as well as the familiarisation with the earlier expert evaluations. Furthermore, his health had drastically deteriorated in detention.

On 21 December 2010 the Court of Appeal extended the applicant ’ s detention to seven months. It also rejected his request for release under an undertaking not to abscond with reasoning identical to that given in its ruling of 19 November 2010.

On 4 January 2011 another criminal case was opened in respect of the applicant and several other persons on suspicion of creation of a criminal organisation aimed at embezzlement of municipal funds. It was joined to the previously opened criminal cases.

On 17 February 2011 the Court of Appeal extended the applicant ’ s pre-trial detention to eight months and rejected his request for release. Its reasoning was identical to that given earlier.

On 21 March 2011 the term of the applicant ’ s pre-trial detention expired.

On 24 March 2011 the Podilskyy District Court of Kyiv (“the Podilskyy Court ”) held a preparatory hearing, during which it decided to keep the applicant in detention. It noted that there were no grounds for changing this preventive measure.

On 20 April 2011 the applicant lodged a request for release submitting that his health was deteriorating and that there was nothing to indicate that he would abscond or hinder establishment of the truth if at liberty.

On the same date the Podilskyy Court rejected the request. It noted that, according to the information from SIZO administration, the applicant ’ s health condition was not incompatible with detention. Furthermore, the court considered that he might evade from the trial, hinder establishment of the truth and continue his criminal activities if released.

On 3 August 2011 the applicant lodged another request for release which the Podilskyy Court rejected on the same date with the reasoning identical to that given in its ruling of 20 April 2011.

2. The applicant ’ s health and medical care provided to him in detention

By a letter of 8 July 2011 the SIZO administration informed the applicant ’ s lawyer that the applicant was under the medical unit ’ s monitoring on account of the following diseases: ischemic heart disease, aorta and coronary atherosclerosis, second-degree hypertension at the crisis stage, chronic cholecystitis in remission, osteochondrosis, chronic prostatitis, and chronic sinusitis in unsteady remission. The applicant was receiving regular treatment on account of the hypertension. Given his health condition, the applicant required additional examination in civilian hospitals and, possibly, further inpatient medical treatment. Written permission of the authority dealing with his criminal case was required for that, as well as for ensuring the convoy.

On 3 August 2011 the Podilskyy Court, although having rejected the applicant ’ s request for release (see above), gave its written permission to the SIZO administration for his examination and treatment in a civilian hospital.

On 16 August 2011 the SIZO administration wrote to the applicant ’ s lawyer that it was still impossible to arrange for his client ’ s convoy.

On 23 September 2011 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case and to indicate to the Government the necessity of his urgent medical examination and treatment in a civilian hospital.

On the same date the Court informed the Government of this request and invited them to submit, by 7 October 2011, information concerning the applicant ’ s state of health, the medical treatment he was receiving and its adequacy, having regard to the SIZO administration ’ s conclusion about his need for examination and treatment in a civil hospital.

On 29 September 2011 the SIZO doctors examined the applicant and confirmed the earlier diagnoses. They prescribed him some medication and concluded that he did not require inpatient treatment in the SIZO medical unit or urgent hospitalisation in a civilian hospital.

On the same date the applicant was also examined by a senior neuropathologist of a local civilian hospital who diagnosed him with some spine conditions and prescribed medication without recommending hospitalisation.

On 3 October 2011 the applicant underwent ultrasonic scanning which confirmed the diagnosis of chronic prostatitis.

On 5 October 2011 he was examined by a civilian-hospital cardiologist who established the following diagnoses: second-degree hypertension “with high risk”, impaired glucose tolerance, and ischemic heart disease (questionable). In order to verify the diagnoses, it was recommended that the applicant undergo the following examinations and tests: echocardiography, cycle ergometry, blood test for glucose, general blood and urine analyses, ultrasonic scanning of the kidneys, lipidogram and electrocardiogram.

On the same date the applicant received a medical consultation from an otolaryngologist who diagnosed him with rhinitis and tonsillitis and prescribed some medication.

On 7 October 2011 the Government responded to the Court ’ s factual request of 23 September 2011. According to them, some of the examinations and tests recommended to the applicant on 5 October (namely, blood test for glucose, general blood and urine analyses, and ultrasonic scanning of the kidneys) were to be performed in the SIZO medical unit in the short term. As to the other examinations, the Government stated that they would be carried out “on a scheduled basis at civilian hospitals by a prior arrangement with relevant specialists”. Lastly, the medication prescribed to the applicant by the neuropathologist, cardiologist, and otolaryngologist could be administered to him once received from his relatives.

On 25 October 2011 the applicant sent to the Court his comments to the Government ’ s submissions. He stated that they had not provided any documents refuting his allegation of the lack of prompt and adequate medical treatment. He also insisted on his request for an interim measure under Rule 39 of the Rules of Court.

On 27 October 2011 the Acting President of the Section to which the case has been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Ukraine, under Rule 39 of the Rules of Court, that the applicant ’ s medical examinations which had already been found to be necessary should be carried out and that the conclusions of those examinations should be acted upon without delay. The application was also given priority treatment under Rule 41 of the Rules of Court.

On 11 November 2011 ultrasonic diagnostics of the applicant ’ s abdominal cavity organs, kidneys and prostate were conducted in the Kyiv City Ambulance Hospital . The diagnoses established were as follows: diffusive liver changes, chronic cholecystitis and pancreatitis.

On 17 November 2011 the applicant was consulted by a cardiologist in the Strazhesko Cardiology Institute. He was diagnosed with hypertension of II level stage A, with high risk. The other diagnoses were as follows: hypercholesterolemia (anamnestic), micronephrolithiasis, chronic cholecystitis, chronic pancreatitis, spine osteochondrosis with secondary pain syndrome. Besides, echocardiorgram was conducted to the applicant on the same day. It established the following: “B” structure functional indexes of the heart rate being within the norm; distal trabecula from basal section with dilatation in the area of branching up to 1.4 cm. Following examinations and tests were recommended to the applicant upon the consultation results: Nechyporenko urine control; quantitative chemical analysis in daily urine; ultrasonic diagnostics of adrenals; ultrasonic Doppler examination of kidney vessels; and consultation of an oculist as to a fundus of eye.

On 22 November 2011 the applicant ’ s health sharply deteriorated during a court hearing and an ambulance was called for him. He was taken to the Kyiv Emergency Hospital where he underwent inpatient treatment.

On 5 December 2011 the applicant was discharged from hospital and transferred to the SIZO. According to him, the medical prescriptions given at his discharge were not respected and he was not provided with the necessary medical care in the SIZO.

From 7 to 30 December 2011 a forensic medical evaluation of the applicant ’ s health condition was conducted on the basis of his medical file. It found that he was suffering from: ischemic heart disease with stable effort stenocardia of II-III functional class and cardiac insufficiency; second-degree hypertension with the high level of risk and discirculatory encephalopathy II with vestibulopathy; and osteochondrosis in unsteady remission. The experts also concluded that the applicant required inpatient medical treatment in a specialised (cardiologic / neurologic) hospital for about ten to fourteen days for stabilisation of his general health condition. It was also necessary to prescribe him medications for his blood pressure correction and control, as well as to conduct his additional examination with the use of “instrumental methods” for clarification (extension) of his diagnoses.

On 26 January 2012 the applicant requested the Court once again under Rule 39 of the Rules of Court to indicate to the Government the necessity to ensure his inpatient specialised cardiological treatment in compliance with the recent medical reports.

On the same date the Court forwarded that request to the Government and invited them to submit comments by 12 February 2012 as regards their compliance with the measures already indicated to them under Rule 39.

On 8 February 2012 the applicant was transferred to the Strazhesko Cardiology Institute where he was consulted by a commission of three cardiologists and underwent an electrocardiogram examination. As a result, he was diagnosed with the second-degree hypertension with the critical flow of the illness and the high level of risk, CH I stage, with the preservation of the systolic function of the left ventricle, and heart ischemia (under doubt). The applicant was prescribed biseprolol and ampren. In order to verify the diagnosis of heart ischemia, he was recommended to undergo bicycle ergometry after his blood pressure stabilisation. The commission also stated that his state of health was stable and that he did not require hospitalisation.

On 10 February 2012 the Government informed the Court about the aforementioned.

On 15 February 2012 the Podilskyy Court , referring to the findings of the expert medical evaluation of 30 December 2011, ordered the applicant ’ s immediate hospitalisation in the Kyiv City Emergency Hospital .

On the same date the applicant was hospitalised. It is not known how long he stayed in hospital (presumably, for about two weeks).

According to him, he was held handcuffed to his bed.

On 26 February 2012 the applicant had to share his hospital room with another detainee, Mr Sh. suffering from an open form of tuberculosis.

B. Relevant domestic law and practice

The relevant provisions of the Code of Criminal Procedure can be found in the judgment in the case of Molodorych v. Ukraine , no. 2161/02 , §§ 56-60, 2 8 October 2010.

COMPLAINTS

The applicant complains, without relying on any provision of the Convention, about the alleged lack of prompt and adequate medical care provided to him in detention.

He further complains about his handcuffing in the Kyiv Emergency Hospital starting from 15 February 2012.

The applicant next complains that he was exposed to a risk of infection with tuberculosis being forced to share his hospital ward with a detainee suffering from an open form of tuberculosis on 26 February 2012.

He also complains under Article 5 § 1 of the Convention that his arrest was not based on “reasonable suspicion of having committed an offence” and that the courts did not advance adequate reasoning in justification of his deprivation of liberty. Relying on the same provision, he additionally complains that his detention after the completion of the pre-trial investigation and before the first court hearing was not covered by any judicial decision.

He further complains under Article 5 § 3 that his continued pre-trial detention has been excessively long and unjustified.

The applicant also complains under Article 5 § 4 that the national legislation did not envisage any mechanisms for a review of the lawfulness of his detention during the pre-trial investigation, while during the trial the court maintained his detention as a preventive measure using standard reasoning, without any regard to the specific circumstances of his case.

He next complains under Article 5 § 5 that he does not have an enforceable right to compensation in respect of the aforementioned violations of the other paragraphs of Article 5.

Lastly, the applicant complains under Article 18 that the real purpose of his deprivation of liberty was to coerce him into confessing to having committed the crimes with which he is charged.

QUESTIONS

1. Has the applicant received prompt and adequate medical care while in detention, in compliance with Article 3 of the Convention?

2. Was the applicant ’ s handcuffing in hospital in breach of Article 3 of the Convention?

3. Has the applicant been deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular:

(a) Was his arrest between 21 and 23 July 2010 free from arbitrariness regard being had to the wording of the arrest report?

(b) Was his detention between 23 and 29 July 2010 free from arbitrariness and based on clear and foreseeable domestic law?

(c) What were the legal grounds for holding the applicant in custody between 21 and 23 March 2011?

(d) Has his detention as a preventive measure at the trial stage been “lawful” under Article 5 § 1 (c) of the Convention given the reasoning advanced by the courts in their justification and the lack of any time-limits set?

4. Has the applicant ’ s pre-trial detention been compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?

5. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention both during the pre-trial investigation and at the trial stage, as required by Article 5 § 4 of the Convention?

The Government are also invited to submit documents regarding the examination of the applicant ’ s appeals against the judicial rulings of 29 July and 16 September 2010.

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