CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 décembre 2015

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UKRAINE   (Applications nos. 74820/10, 71/11, 76/11, 83/11, and 332/11)               JUDGMENT     STRASBOURG   3 December 2015     FINAL   03/03/2016       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Yaroshovets and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Ganna Yudkivska,   André Potocki,   Faris Vehabović,   Síofra O’Leary,   Carlo Ranzoni,   Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 10 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications (nos.   74820/10, 71/11, 76/11, 83/11, and 332/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals, Mr Danylo Mykolayovych Yaroshovets (“the first applicant”), Mr Vyacheslav Mykolayovych Vorona (“the second applicant”), Mr Oleg Valeriyovych Baltyan (“the third applicant”), Mr Viktor Mykolayovych Pylypchuk (“the fourth applicant”) and Mr Andriy Vasylyovych Romanchuk (“the fifth applicant”), on 12 December 2010. 2.     The applicants were represented by lawyers practising in Kyiv. In particular, the first applicant was represented by Mr V. Makhinchuk, the second and fifth applicants by Mr R. Rozmetov, the third applicant by Mr   G. Aliyev, and the fourth applicant by Mr M. Dmytruk. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice. 3.     The applicants complained under Article   5   §§   1   (c) and 3 of the Convention of the unlawfulness and length of their detention, and under Article 6 § 1 of the Convention of the excessive duration of the proceedings. Four of the applicants further complained under Article 3 of the Convention about the conditions of their detention, and of inadequate medical treatment and restrictions on family visits while in detention. They also submitted that in violation of Article 5 § 5 of the Convention they had not been provided with an enforceable right to compensation for the violation of their right to liberty. One of the applicants complained under Article 3 of the Convention that he had been ill-treated by the police after his arrest. 4.     On 12 September 2011 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant was born in 1978; the second, third and fourth in 1981; and the fifth in 1982. With the exception of the second applicant who died on 9 March 2014, the applicants currently live in Kyiv. Ms   O.P.   Vorona, the second applicant’s mother, informed the Court of her wish to pursue the application on his behalf. A.     Criminal proceedings against the applicants 6.     The applicants, along with two other persons, were co-defendants in criminal proceedings instituted against them in October 2005. The charges against them included a number of counts of ill-treatment, theft, extortion and abuse of power, which the applicants allegedly committed during their service in the police. 7.     At about 9 a.m. on 14   October   2005 the applicants, then police officers, were arrested by a special police unit and taken to the Kyiv City Police Department to be questioned by the prosecutors responsible for the investigation. Later that day the prosecutors ordered the applicants’ detention under Article 115 of the Code of Criminal Procedure of 1960. During the night of 14 to 15 October 2005 they were taken to police stations in the Shevchenkivskyy and Podilskyy Districts of Kyiv. 8.     On 15 October 2005 the applicants were taken back to the Kyiv City Police Department for questioning. 9.     The applicants were detained on different police premises until the end of October 2005, when they were placed in the Kyiv Temporary Detention Centre ( слідчий ізолятор – “SIZO”). 10.     From 17 October 2005 until the pre-trial investigations were completed and the case was referred to the Desnyanskyy District Court of Kyiv for trial on 12 December 2006, the courts at three levels of jurisdiction ordered the applicants’ continued detention. The courts based their decisions mainly on the grounds that the case was complex and the investigations were pending, that the applicants were accused of serious crimes, that they might evade investigation and trial and obstruct the establishment of the truth in the case, and that they might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicants’ state of health and family situation had been duly noted. Between 14 and 23   January 2007 the applicants continued to be detained as the case was awaiting examination by the trial court. There was no decision authorising the applicants’ detention during that period. 11.     At trial, which started with a preliminary examination of the case on 23 January 2007, the courts refused the applicants’ and their lawyers’ repeated requests for release. Some of the decisions made reference to the seriousness of the crimes of which the applicants were accused and stated that there were no grounds for changing the preventive measures imposed, while other decisions provided no explanation for the refusal to release the applicants. 12.     On 25 May 2007 the District Court ordered the second applicant’s release on an undertaking not to abscond. 13.     On 28   October   2008 the District Court convicted the applicants and sentenced them to five years’ imprisonment with a ban on holding office in a law-enforcement capacity for three years and with confiscation of property. The second applicant’s sentence was suspended for three years. The other applicants were ordered to remain in detention pending the entry into force of the judgment. 14.     On 14 May 2009 the Court of Appeal quashed the first-instance court’s judgment and adopted a new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. It also ordered the second applicant’s detention. 15.     On 3   November 2009 the Supreme Court quashed the judgment of the Court of Appeal, mainly because of the lower court’s incomplete examination of the facts and non-compliance with the rules of procedure, and remitted the appeal against the judgment of 28 October 2008 to the Court of Appeal for reconsideration. The Supreme Court did not examine the applicants’ and their lawyers’ requests for release. 16.     On 24   December 2009 the Court of Appeal quashed the judgment of 28   October 2008, finding that the first-instance court had failed to duly examine the applicants’ arguments and evidence, and that the criminal classification of their actions had been incorrect. The case was remitted to the District Court for retrial. The applicants were ordered to remain in detention. 17.     In the course of the new examination of the case at first instance the applicants requested the District Court to release them arguing that there was no reason for their further detention and that their state of health was declining. On 15 February 2010 the District Court refused the requests as unsubstantiated. 18.     On 13   August 2010 the District Court delivered a new judgment, finding the applicants guilty of a number of counts of torture, extortion, knowingly unlawful searches, and abuse of power. With the exception of the fourth applicant, they were also convicted of theft and forgery. The applicants were sentenced to five years’ imprisonment and banned from holding office in a law-enforcement capacity for three years. The court also ordered the confiscation of the property of some of the applicants. The second applicant was dispensed from serving his sentence and released from detention. The others were ordered to remain in detention pending the entry into force of the judgment. The starting date for the calculation of the duration of their imprisonment was 14 October 2005. 19.     The third and fourth applicants and the prosecutor appealed against the judgment. The prosecutor challenged, in particular, the first-instance court’s refusal to find that the applicants had committed the crimes as members of an organised group, resulting in the wrong classification of their actions. The prosecutor also argued that the sentence was too lenient. 20.     On 14 September 2010 the case was transferred to the Court of Appeal. On 21 October 2010 the Court of Appeal allowed in part the prosecutor’s procedural request and decided to examine afresh the evidence concerning the part of the case challenged by the prosecutor. 21.     The first, third, fourth and fifth applicants requested the Court of Appeal to release them, arguing that by 14   October 2010 they had had served their sentences and that there were no grounds to suggest that they would avoid further proceedings in their case. The first and fifth applicants also argued that during their detention in the SIZO their state of health was declining. 22.     On 8   November 2010 the Court of Appeal refused the applicants’ requests for release, holding that they were accused of serious crimes and sentenced to five years’ imprisonment, that the judgment of 13   August 2010 did not enter into force and that it was being challenged by the prosecutor and by two of the applicants. On 17 January 2011 the Court of Appeal refused the applicants’ repeated requests for release principally for the same reasons, having further noted that the verdict was being challenged inter alia for the reason of lenient sentence and that it was being reviewed by that court. 23.     In the course of the proceedings before the Court of Appeal, about thirty hearings took place. On 20 September 2011 the Court of Appeal allowed the prosecutor’s appeal and quashed the judgment of 13   August 2010. The appeals of the third and fourth applicants were dismissed as unsubstantiated. The Court of Appeal adopted another new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. In particular, the first applicant was sentenced to eight years’ imprisonment, the second applicant to six years, the third and fifth applicants to seven and a half years, and the fourth applicant to seven years. It ordered the second applicant’s detention. The other applicants were also ordered to remain in detention. The starting date for the calculation of the duration of the first, third, fourth and fifth applicants’ imprisonment was 14   October 2005. The Court of Appeal further ruled that the second applicant’s detention between 14 October 2005 and 25   May 2009 and between 14   May 2009 and 13   August 2010 counted towards the duration of his imprisonment, the calculation of which had to start from the date on which the enforcement of the judgment of 20 September 2011 would begin. 24.     On 8 May 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of 20 September 2011 for various procedural violations, including the failure of the Court of Appeal to question the applicants concerning the charges, the unreasoned refusal to examine the material concerning the allegations of police ill-treatment (see paragraphs 28-36 below) and for the court’s failure to comply with the instructions contained in the decision of the Supreme Court of 3   November 2009. The case was remitted to the Court of Appeal for fresh examination. The applicants were released from detention on an undertaking not to abscond. 25.     On 16 September 2014 the Court of Appeal quashed most of the judgment of 13   August 2010. It found the applicants guilty of seven counts of ill-treatment, extortion and abuse of power. The applicants, excluding the second applicant, were sentenced to four and a half years’ imprisonment. The second applicant was not sentenced because he had died in the meantime. 26.     In its decision of 16 September 2014, the Court of Appeal held that, in view of the case-file material on which the prosecutors’ decision of 16   May 2007 was based, there had been no violation of the applicants’ rights at the initial stage of the investigation. While injuries had been discovered on the first applicant’s body in October 2005 (see paragraph 30 below), the “possible use of force in the course of his arrest had had no impact on his [defence] position in the case”, as he had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage. The Court of Appeal further found that the alleged psychological pressure – allegations made by the applicants at trial though not supported by any evidence – “had had no impact on the [defence] position” of the applicants. 27.     According to the fourth applicant, on 16 June 2015 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of the Court of Appeal of 16 September 2014 and delivered a new judgment. The parties have not provided a copy of that judgment. B.     Alleged ill-treatment of the first applicant 28.     According to the first applicant, between 5 p.m. on 14 October 2005 and 2 a.m. on 15 October 2005 he was beaten up and threatened with physical violence by police officer B. for refusing to answer questions relating to the crimes of which he was suspected. In particular, officer B. hit the first applicant in the face, the body and the legs, and also tightened the handcuffs on his wrists, causing him considerable pain. During the same period several other police officers insulted and threatened the first applicant and his close family members in an attempt to force him to confess to having committed the crimes of which he was eventually charged. Because of the ill-treatment, the first applicant refused to be questioned on 14 October 2005. His refusal was recorded in the case file. 29.     On 17 October 2005 the applicant was taken to a police detention unit ( ізолятор тимчасового тримання – “ITT” ) in which he was examined by a paramedic who noted that he had bruises on his face and the legs. 30.     Further to instructions issued by the prosecutors, on 19 and 26   October 2005 the first applicant was examined by doctors, who noted a number of bruises on his face and legs. They stated that the injuries could have been inflicted by “blunt objects” during the period referred to by the applicant (see paragraph 28 above). 31.     On an unspecified date an official inquiry was launched into the first applicant’s allegations of ill-treatment. During the inquiry, the first applicant and his close relatives made detailed submissions, giving the names of some of the alleged offenders and specifying the time-frame and the place of the relevant events. 32.     The inquiry initially resulted in a decision of 14 November 2005, by which the prosecutors rejected the complaints as unfounded. Following an appeal lodged by the first applicant, in September 2006 a district court quashed that decision, finding that the inquiry had been incomplete. In particular, the court noted that the prosecutors had not questioned the first applicant and his co-accused, that not all the police officers involved in the events had been questioned, and that the origin of the first applicant’s injuries had not been established. In March 2007 the courts found a further inquiry also incomplete, inter alia, because the prosecutors had failed to establish the origin of the first applicant’s injuries. The matter was again remitted to the prosecutors. 33.     On 16 May 2007 the prosecutors rejected the complaints as unsubstantiated, finding that there was no evidence that the first applicant’s bruises had been inflicted by police officers. The prosecutors’ decision was principally based on the statements of the police officers who had taken part in the first applicant’s arrest and those who had been in contact with him afterwards. Those police officers stated that the first applicant had not been subjected to “physical or psychological coercion” and that he had not raised any complaints in that regard on 14 or 15   October 2005. They also argued that after his arrest on 14 October 2005 and until his placement in a cell at the Shevchenkivskyy District police station on 15 October 2005, the first applicant had been under the constant supervision of several police officers. At the police station, he had been detained alone in a cell and “without constant supervision” of the police. In his statements, officer B. also suggested that the first applicant had complained about him because the first applicant had been dissatisfied with the fact that officer B. had recorded all the items found in the car which he and his fellow suspects had used. During the search of that car the first applicant had insulted officer B. The incident had been witnessed by other people. 34.     In their decision, the prosecutors also referred to the statements of the doctor who had examined the first applicant on 26 October 2005, obtained during the inquiry. In particular, the doctor stated that, given the location of the first applicant’s injuries, it could not be ruled out that they had been inflicted by the first applicant himself or “by a traumatic impact with a blunt object”. 35.     The prosecutors’ decision was eventually upheld by the courts of first and appeal instances on 29   August and 21   November 2007 respectively. 36.     Relying on the prosecutors’ findings, the District Court and the Court of Appeal dealing with the applicants’ criminal case also rejected identical complaints lodged by the first applicant, finding that the “possible use of force in the course of his arrest had had no impact on [his defence] position in the case”, as the first applicant had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage (see, in particular, paragraph 26 above). C.     Allegedly inadequate medical assistance to the fourth applicant in the SIZO 37.     In April 2006 the fourth applicant was examined by a doctor from the SIZO medical unit and was diagnosed with chronic prostatitis. In September   2006 he was further examined by a doctor and an urologist from the SIZO medical unit, who prescribed specific medication for the treatment of his chronic prostatitis. Subsequently, the fourth applicant underwent a number of medical checks by SIZO doctors in October and December 2006, June 2007, April and May 2008, May 2009, and June 2010, in the course of which it was confirmed that he had a serious urological dysfunction, often diagnosed as chronic prostatitis. He was prescribed specific medication. 38.     During that period of time the fourth applicant, his lawyer and members of his family asked the authorities to allow the fourth applicant to be examined at a specialised clinic, but to no avail. Requests for the fourth applicant’s release in view of his state of health were also refused. By a letter dated 21 April 2008, the SIZO governor informed the fourth applicant’s lawyer that the SIZO medical unit did not have the equipment necessary to make an accurate diagnosis of the fourth applicant’s condition. 39.     During a court hearing in the applicants’ criminal case on 2   February 2011 an ambulance was called for the fourth applicant because he was suffering from acute bladder pain. Doctors noted that he needed urgent catheterisation of the bladder. The judge of the Court of Appeal dealing with the applicants’ criminal case asked the SIZO governor to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary. On the same day, the fourth applicant was examined on the premises of the SIZO by a doctor from a civilian hospital. The doctor diagnosed him with acute chronic prostatitis and chronic cystitis, prescribed an antispasmodic drug and instructed him to undergo a urine test. He found no reason to prescribe urgent hospitalisation. The next day the fourth applicant underwent a urine test, which did not reveal any pathology. 40.     On 3 February 2011, following a complaint by the fourth applicant’s mother that he had not received the required medical treatment, the judge of the Court of Appeal sent a letter to the SIZO governor requesting him, for the second time, to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary. 41.     On 4 February 2011 the fourth applicant was taken to a civilian hospital where he was examined by a urologist, who diagnosed him with chronic prostatitis and chronic cystitis without a urinary disorder. The urologist found that the fourth applicant did not need a catheter or inpatient treatment. He was prescribed special medication. 42.     Subsequently, in February and March 2011 the fourth applicant was further examined and treated with medication by a dermatologist from the SIZO medical unit, who eventually noted a certain improvement in his urological problem. 43.     On 31 March 2011, following the fourth applicant’s request for interim measures under Rule 39 of the Rules of Court, the Court asked the Government to provide information concerning the fourth applicant’s state of health. 44.     On 5 April 2011 the fourth applicant was examined by a panel of SIZO doctors and diagnosed with chronic prostatitis at the remission stage. 45.     On 8 April 2011 a urologist from a civilian hospital examined the fourth applicant. He was diagnosed with urethroprostatitis at the exacerbation stage. Urine and prostatic fluid tests were recommended. Following the tests, the urologist prescribed specific medication. 46.     On 4 May 2011, having received updated information concerning the fourth applicant’s medical situation from the Government and the fourth applicant himself, the Court decided to refuse his request under Rule 39. 47.     Urologists carried out further medical examinations in September and October 2011. They noted that the fourth applicant was suffering from acute chronic prostatitis and chronic cystitis and prescribed him medication, which he received in a parcel from his relatives in October 2011. 48.     By a letter of 17 October 2011, the deputy head doctor of a civilian hospital at which the fourth applicant had been examined informed the applicant’s lawyer that the treatment initially prescribed had been ineffective and that the fourth applicant needed “physiotherapeutic treatment along with ethiopathogenetic medication, which could not be made available in the SIZO”. 49.     On 10 November 2011 the Court indicated, under Rule 39, that the Government should ensure that the applicant was urgently provided with medical treatment for his health problems in accordance with the doctors’ instructions, including those contained in the aforementioned letter of 17   October 2011. The interim measure was eventually lifted on 5   February 2013. 50.     On 16 November 2011 the fourth applicant was examined by a urologist at a civilian hospital. He was diagnosed with chronic prostatitis beyond the stage of active inflammation and it was concluded that he did not require inpatient treatment. There is no information about his medical situation while in detention after that date. 51.     After his release from detention on 8 May 2012, the fourth applicant was further examined by various doctors. In particular, on 22   May 2012 he was examined at a private urological clinic; the doctor discovered “congestive inflammatory modification” of his prostate, chronic calculous prostatitis, double-sided vesiculitis (inflammation and infection of the seminal vesicles) and intra-pelvic venous ( інтрапельвікальна ) congestion. In June 2012 the fourth applicant underwent surgery on his urethra. In June 2014 he underwent similar surgery. D.     Conditions in which the first, third, fourth and fifth applicants were transported and their detention in transit cells 52.     According to the applicants, excluding the second applicant, when they were transported to and from court hearings they were kept for several hours in overcrowded prison vans, with insufficient access to fresh air and no heating. They were thus exposed to high temperatures in summer and freezing temperatures in winter. It took the vans several hours to get to the Desnyanskyy District Court and there were instances where, on returning to the SIZO, the applicants concerned had to wait in the vans for several hours while security checks were carried out. 53.     The applicants concerned stated that they had been transported in the above conditions on more than 200 occasions. 54.     They further submitted that on court days they had been routinely taken out of their cells at about 8   a.m. and before being taken to a prison van, had been placed in special transit boxes measuring 3.75 square metres with no ventilation for durations ranging from thirty minutes to several hours. Upon their return from court hearings, often at about 8   p.m., the applicants concerned had also had to wait for several hours in the same transit boxes before being escorted to their regular cells. 55.     According to the Government, prison vans measured 8 square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones, measuring 2.5 square metres and designed for ten passengers each, and one small compartment for two passengers). The vans had no windows, but they were equipped with ventilation grills and benches for sitting on. The Government further submitted that on average it took up to forty minutes to transport prisoners between the SIZO and the Court of Appeal. E.     Family visits in detention 56.     During their detention, the applicants, excluding the second applicant, received a certain number of one-hour visits by their close relatives, during which the applicants concerned and their visitors had to communicate via glass partition. No dates of those visits were specified. Nor did the applicants concerned claim that they or their relatives had requested any other visits. The applicants concerned stated that their relatives had had to consent to be questioned as witnesses in order to meet with the applicants concerned in detention. II.     RELEVANT DOMESTIC LAW A.     Code of Criminal Procedure of 1960, repealed as of 19 November 2012 57.     The relevant extracts from Chapter 13 (Preventive measures) read, as worded at the material time, as follows: Article 148. The aim and grounds for the application of preventive measures “Preventive measures shall be applied in respect of a suspect, accused, defendant or convict with the aim of preventing attempts to abscond from the investigation or trial, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convict will try to abscond from the investigation or trial, or evade complying with procedural decisions, or obstruct the establishment of the truth in a criminal case, or pursue criminal activities. If there are not sufficient grounds to apply a preventive measure, the suspect, accused, defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry, the investigator, prosecutor, or the court, and to inform them of any change of his or her place of residence. ...” Article 149. Preventive measures “The preventive measures are as follows: (1)     a written undertaking not to abscond; (2)     a personal guarantee; (3)     the guarantee of a public organisation or labour collective; (3-1)     bail; (4)     detention in custody; (5)     supervision by the command of a military unit. ...” Article 155. Detention in custody “The preventive measure of detention in custody shall be applied in cases concerning crimes for which the law envisages a punishment of more than three years’ imprisonment. In exceptional circumstances, this preventive measure may be applied in cases concerning crimes for which the law envisages a punishment of up to three years’ imprisonment. ...” Article 162. Visiting a detainee “Visits of relatives or other persons to a detainee can be allowed by a person or an institution that deals with the case. The duration of the visit shall be fixed from one to four hours. The visit can be allowed, as a rule, not more than once a month.” Article 165. General provisions concerning the procedure on the application, discontinuation and change of a preventive measure “The preventive measure of detention in custody shall be applied only pursuant to a reasoned decision of a judge or of a court... ... ... While court proceedings are pending, release from detention shall be ordered only by a decision of a judge or of a court. A preventive measure may be changed or lifted if there is no need for it to be applied. ...” 58.     Other relevant provisions of the Code read as follows: Article 324. Issues to be decided by the court when adopting a judgment “When adopting a judgment, the court shall decide: ... (11)     on the preventive measure to be applied to the defendant; ...” Article 338. Calculation of the duration of serving a sentence “Calculation of the duration of a prison sentence ... shall start from the moment the judgment is being enforced, where the defendant was not in detention prior to the delivery of the judgment. Where the convict was detained prior to the delivery of the judgment in the framework of the proceedings in question, the duration of his detention shall count towards his sentence. ...” Article 342. Release of a defendant from custody following a court judgment “Following the acquittal of a defendant, or his dispensation from serving a sentence, or the imposition on him of a punishment other than imprisonment, the court shall immediately release the defendant from custody in the courtroom if he or she is in detention.” Article 343. Application of preventive measures for the period before a court judgment comes into effect “When adopting a judgment by which a defendant is sentenced to a certain type of punishment, the court should consider whether to apply a preventive measure for the period before the judgment comes into effect, and has the right to apply new preventive measures, or to quash, change, or maintain the preventive measures that have been applied earlier. The application of such a preventive measure as detention in custody shall be permissible only on the grounds set out in the relevant Articles of Chapter 13 of this Code.” Article 345. Granting relatives permission to visit a convict “Prior to entry of the judgment into force, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convict, upon their request, permission to visit the detained convict.” Article 357. Preliminary examination of the case by an appellate court “If necessary, an appellate court may conduct a preliminary examination of the case. ...” Article 358. Examination of issues relating to the preparation of the case for appellate proceedings “During a preliminary examination an appellate court may consider the following issues relating to the preparation of the case for appellate proceedings: ... (5)     to change, to lift or to apply a preventive measure; ...” Article 401. Entry into force of a court judgment and its enforcement “A judgment of a local court shall enter into force after the expiry of the time-limit for lodging an appeal if it was not challenged [on appeal], whereas a judgment of an appellate court [shall enter into force] after the expiry of the time-limit for lodging a cassation appeal [if it was not challenged in cassation]. If an appeal, a cassation appeal was lodged, the court’s judgment shall enter into force after the examination of the case by a court of appellate or cassation instance as relevant, unless it was [eventually] quashed [or] unless the Code provides otherwise. ... A court judgment convicting [a defendant] shall be enforced once it enters into force. ...” B.     Criminal Code of 2001 59.     Article 72 § 5 of the Criminal Code provides, in so far as relevant, as follows: “When sentencing [a defendant] to imprisonment, the court shall reckon [any time he or she spent in] preliminary detention as counting towards the term of [his or her prison] sentence...” C.     Civil Code of 2003 60.     Article 1176 of the Civil Code provides for the right to compensation for damage sustained as a result of unlawful decisions, actions or inactivity by bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. It further provides that the procedure for claiming compensation for damage inflicted by such bodies “shall be established by the law”. D.     Preliminary Detention Act of 1993 61.     The relevant provisions of the Preliminary Detention Act of 30   June 1993 read, as worded at the material time, as follows: Section 1   “Preliminary detention ... is a preventive measure [which can applied] to an accused, defendant, person suspected of a crime liable to a punishment of imprisonment, and convict in whose respect the judgment has not entered into force. ...” Section 12 “Visits of relatives or other persons to a detainee can be allowed, as a rule, once a month by the administration of the detention facility with the written approval of an investigator, a body of inquiry or a court dealing with the case. The duration of the visit shall be fixed from one to four hours. ...” E.     Compensation Act of 1994 62.     The relevant provisions of the Act of 1   December 1994 on the procedure for claiming compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts (“the Compensation Act”) read as follows: Section 1 “Under the provisions of this Act a citizen is entitled to compensation for damage caused by: (1)     unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizen’s rights; ...” Section 2 “The right to compensation for damage in the amount and in accordance with the procedure established by this Act shall arise in the event of: (1)     acquittal by a court; (2)     the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti , or for lack of evidence of the accused’s participation in the commission of the crime; (3)     refusal to initiate criminal proceedings or terminate criminal proceedings on the grounds stipulated in subsection (2) above; (4)     termination of proceedings for an administrative offence. ...” 63.     Following amendments to section 2 of the Compensation Act of 1   December 2005, the list of situations in which the right to compensation arose was supplemented with the following subsection: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (except for rulings on the remittal of cases for additional investigation) ...” III.     RELEVANT INTERNATIONAL AND DOMESTIC REPORTS 64.     The relevant international and domestic materials concerning conditions of detention and transportation can be found in the judgments of Yakovenko v.   Ukraine (no.   15825/06, §§   56-61, 25   October 2007), Koktysh v. Ukraine (no. 43707/07, §§   39-42, 10 December 2009), and Andrey   Yakovenko v. Ukraine (no. 63727/11, §§ 71-73, 13 March 2014). 65.     In its Report to the Ukrainian Government (published on 23   November 2011) on the visit to Ukraine carried out from 9 to 21   September 2009 the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment stated as follows (original emphasis): “44.     The delegation received some complaints from detained persons about transport conditions during transfers between Internal Affairs establishments. At Boryspil Division of Internal Affairs, the delegation had the opportunity to inspect a van used for transporting detained persons. The conditions inside it were unacceptable. The cabin was divided into four individual compartments, measuring some 0.5 m² each. Such a confined space is unsuitable for transporting a person, no matter how short the duration ...” THE LAW I.     JOINDER OF THE APPLICATIONS 66.     The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II.     AS TO THE LOCUS STANDI OF MS O.P. Vorona 67.     The Court notes at the outset that the second applicant died while the case was pending before the Court. His mother Ms O.P. Vorona informed the Court that she wished to pursue his application. In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see, for a recent authority, Dimitar Krastev v. Bulgaria , no. 26524/04, §   42, 12   February 2013, with further references). It sees no reason to reach a different conclusion in the present case and therefore accepts that Ms O.P. Vorona can pursue the application initially brought by the second applicant. III.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.     Alleged ill-treatment of the first applicant 68.     The first applicant initially complained that he had been beaten up and pressured by the police after his arrest on 14   October   2005. In his submissions of March 2012, he further complained that he had not been given food and warm clothes between 14 and 15 October 2005 and that his handcuffs had not been removed until 2 a.m. on 15 October 2005. He also complained that no effective investigation had been carried out into his allegations of ill-treatment by the police. He relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 1.     Admissibility 69.     At the outset, the Court notes that the first applicant’s allegations of threats and psychological pressure by the police and of deprivation of food, which he raised at the domestic level, were not sufficiently detailed or supported by any evidence. Nor was there any evidence that he had been made to wear handcuffs for an excessive time. Thus, the Court considers that the first applicant’s complaints in that regard were not “arguable” for the purposes of Article 3 of the Convention so as to require the domestic authorities to carry out an effective investigation. The complaints submitted before this Court also appear to be unsubstantiated. Accordingly, the Court finds that this part of the first applicant’s complaints of ill-treatment by the police, under both the substantive and the procedural limbs of Article 3, should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 70.     By contrast, the Court notes that the first applicant’s allegation that he was injured while in the hands of the police after his arrest on 14   October 2005 is supported by medical reports and by his detailed account of the events (see paragraphs 28-30 above). Accordingly, that complaint was prima facie arguable and, given the Court’s settled case-law on the matter, the authorities were required to conduct an effective official investigation (see, for instance, Kaverzin v. Ukraine, no.   23893/03, § 106, 15 May 2012). 71.     In the light of the foregoing, the Court finds that the first applicant’s complaints under Article 3 of the Convention of his beating by the police and the authorities’ failure to conduct an effective investigation in that regard are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. The Court further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2.     Merits (a)     The parties’ submissions 72.     The first applicant complained that he had been beaten up by police officer B. and that there had been no effective investigation into that incident. 73.     The Government contended that the first applicant had failed to demonstrate that he had been ill-treated by the police and that his complaints had been disproved by the police officers’ reports and statements. The Government further argued that the medical records of 19   and 26 October 2005 suggested that the first applicant could have inflicted the injuries by himself and that at the time they had been inflicted the first applicant had not been “under the jurisdiction of police officers”. According to the Government, the first applicant’s submissions before the domestic authorities regarding the alleged ill-treatment had lacked clarity and consistency and had been rejected as unfounded by the prosecutors and the courts. For the Government, the situation in the first applicant’s case was comparable to that in Aleksandr Smirnov v. Ukraine (no. 38683/06, 15   July 2010). Referring to the Court’s finding that there had been no violation of Article 3 of the Convention under its substantive limb in the latter case (see Aleksandr Smirnov , cited above, §§ 54-55), the Government argued that in the present case the origin of the first applicant’s injuries could not be established. 74.     The Government further stated that the first applicant’s complaints had been duly investigated at the domestic level – in particular, a number of police officers had been questioned and two medical examinations had been performed – and that there were sufficient grounds for the decision refusing to initiate criminal proceedings against the police officers. The Government opined that there had been no violation of Article 3 of the Convention as regards the first applicant’s complaints. 75.     The first applicant contested the Government’s submissions. In particular, he stated that in the medical records of 19 and 26 October 2005 it was not suggested that he could have inflicted his injuries by himself and that there was sufficient evidence that he had been in the hands of the police when he had been injured. He further argued that his complaints of ill-treatment had been clear, consistent and sufficiently precise, whereas the authorities had failed to establish the exact time and the origin of his injuries. (b)     The Court’s assessment 76.     The Court observes that the first applicant’s complaints under consideration concern both the substantive and the procedural aspects of Article   3 of the Convention. As regards the former aspect, the Court notes that it is common ground between the parties that the first applicant sustained his injuries while in police custody. That was also confirmed by medical reports (see paragraphs 29-30 above). The parties however disagreed as to whether police officers had inflicted those injuries. 77.     The Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. Therefore, the Court considers it appropriate to examine first whether the first applicant’s complaint was adequately investigated by the authorities (see, for example, El-Masri v.   the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§   155 and 181, ECHR 2012; Kaverzin , cited above, § 107; Baklanov v.   Ukraine , no. 44425/08, §§ 70, 71 and 91, 24   October 2013; Dzhulay v.   Ukraine , no. 24439/06, § 69, 3 April 2014; and Chinez v. Romania , no.   2040/12, § 57, 17 March 2015). It will then turn to the question of whether the alleged ill-treatment took place, bearing in mind the relevant domestic findings. (i)     Alleged failure to investigate the first applicant’s complaint of ill-treatment by the police 78.     The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v.   Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). 79.     The investigation into serious allegations of ill-treatment must be thorough. T