CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 21 novembre 2019

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UKRAINE (Application no. 46196/11)             JUDGMENT   STRASBOURG 21 November 2019   This judgment is final but it may be subject to editorial revision. In the case of Smilyanskaya v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Gabriele Kucsko-Stadlmayer, President,   Yonko Grozev,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 46196/11) against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Viktoriya Gennadiyevna Smilyanskaya (“the applicant”), on 15 July 2011. 2 .     The applicant, who had been granted legal aid, was initially represented by Ms Y. Zaikina, a lawyer practising in Kharkiv. She was succeeded by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice. 3.     The applicant alleged, under Article 3 of the Convention, that the material conditions of her detention had been poor and that adequate medical treatment had not been available to her in detention. She also complained, under Article 5 of the Convention, that her pre-trial detention had been arbitrary, that the relevant court decisions had lacked reasoning, and that there had been no effective procedure available to her to challenge the lawfulness of her detention and receive compensation for the above violations. 4.     On 4   April 2018 the Government were given notice of the application. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in Kharkiv. Criminal proceedings against the applicant 6.     On 13 January 2011 a criminal investigation was instituted against the applicant, who was suspected of being involved in the illegal purchase, storage, and trafficking of drugs. 7.     On 17 January 2011 she was arrested within the framework of the above investigation and placed in police custody. 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. 8.     On 20 January 2011 the Kyivskyi District Court of Kharkiv (“the District Court”) extended the applicant’s police custody to ten days with a view to obtaining an assessment of her personality. 9 .     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. 10.     On 16 March, 27 April, and 16 May 2011 the applicant applied for release. The District 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. 11.     On 16 March and 27 April 2011 the District 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. 12.     On an unspecified date (presumably in June 2011) the criminal case against the applicant, together with the relevant bill of indictment, was transferred to the District Court for consideration on the merits. 13.     On 1 November 2011 the court, having regard to the applicant’s state of health, released her on an undertaking not to abscond. In the course of the proceedings the District Court found that the applicant needed treatment at a specialist medical facility. 14 .     According to the Government, the criminal case against the applicant is currently ongoing before the trial court. Conditions of detention in the Kharkiv SIZO 15.     According to the applicant, on 2 February 2011 she was placed in the Kharkiv Pre-trial Detention Centre (“the SIZO”). 16 .     She 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 in total and housed twelve detainees, while cell no. 409 measured 18.1 sq. m in total and housed twenty-two detainees. 17 .     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. 18 .     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. In written complaints of 10 and 21 February, 5 March, 4 and 10 August 2011 the applicant informed the SIZO authorities about the continued deterioration of her health, in particular that she was suffering from breathlessness, headaches, weakness and a persistent cough. She asked to be transferred to a cell with non-smokers. 19 .     The applicant submitted copies of written statements given 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. Medical care provided to the applicant 20 .     According to the material in the case file, the applicant has suffered from asthma since 1980. 21 .     On the morning of 17 January 2011, while still at liberty, she suffered a major asthma attack 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. 22 .     On 20 February 2011 the applicant complained to the Prosecutor General’s Office that she had not been receiving asthma treatment in the SIZO. 23.     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. 24 .     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 lung clinic outside the SIZO. 25 .     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. 26.     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. RELEVANT international material 27 .     The Report to the Ukrainian Government on the visit to Ukraine carried out by the Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) from 29 November to 6   December 2011 (CPT/Inf (2012) 30) reads as follows: “43. The delegation gained a generally positive impression of the material conditions in the units for juveniles at the [SIZO] in ... Kharkiv. However, conditions of detention were quite simply appalling in many of the other detention units of the [SIZO]. Numerous cells were in a poor state of repair and had only very limited access to natural light. In addition, the CPT is concerned about the severe overcrowding observed in a number of detention units of [the facility]. At the time of the visit, the ... Kharkiv SIZO [accommodated] 3,415 prisoners (official capacity: 2,808 places).” THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28.     The applicant complained that the material conditions of her detention had been poor and that adequate medical treatment had not been available to her in detention. She relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 29.     The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of her complaint of a lack of medical treatment. They considered that she should have lodged her health complaints with the prosecutor’s office and the domestic courts. 30.     The applicant submitted that the remedy referred to by the Government had already been examined by the Court in other cases against Ukraine and had been found to be ineffective. 31.     The Court notes that it has already examined and dismissed similar objections, finding the remedy referred to by the Government ineffective (see, for instance, Melnik v. Ukraine , no. 72286/01, §§   69, 113-16, 28   March 2006; Dvoynykh v.   Ukraine , no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine , no.   30628/02, §§ 91-92, 18 December 2008; Iglin v.   Ukraine , no.   39908/05, § 77, 12 January 2012; Barilo v.   Ukraine , no.   9607/06, §§ 104-05, 16 May 2013; Buglov v.   Ukraine , no. 28825/02, §   74, 10 July 2014; and Sokil v. Ukraine , no   9414/13, § 38, 22   October 2015). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had an opportunity in practice to obtain an effective remedy for her complaint  that is, a remedy which could have prevented the violations from occurring or continuing, or which could have afforded her appropriate redress. The Court therefore considers that the applicant’s complaint of a lack of medical treatment cannot be rejected for failure to exhaust domestic remedies. 32.     The Court notes that the above complaints are not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits 33.     The applicant reiterated her complaints outlined in the application form, namely that the conditions of her detention had been poor and that she had not been provided with adequate medical treatment while in detention. 34 .     The Government submitted that the documentation on the subject had been destroyed on the expiry of the statutory storage period. At the same time, they contended that the conditions of the applicant’s detention and the medical treatment provided to her had been compatible with the requirement of Article 3 of the Convention. Conditions of detention 35.     The applicable general principles in respect of conditions of detention have been summarised in Muršić v. Croatia ([GC] no. 7334/13, §§   96 ‑ 141, 20 October 2016). 36.     The Court notes that, in the present case, the applicant provided a detailed description of the conditions in the Kharkiv SIZO during her detention, and supported it with relevant documentary evidence (see paragraphs 16 to 19 above). 37.     While the parties have not provided the Court with precise information concerning the amount of personal space per inmate, it can be concluded from the available submissions that from 2 February to 27   July 2011 and from 12 August to 1 November 2011 the applicant had approximately 3 to 4 sq. m of personal space, and less than 1   sq. m of personal space from 1 to 12 August 2011. 38.     In cases where a prison cell measuring in the range of 3 to 4 sq. m of personal space per inmate is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances, a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić , cited above, §   139). 39.     In this connection, the Court observes the applicant’s allegations that there were problems with lighting, ventilation, heating, sanitation, nutrition and hygienic conditions (see paragraph 17 above). Moreover, it cannot overlook the fact that her state of health required specific medical care, and that she was not transferred to a cell with non-smokers, despite being an asthma sufferer (see paragraph 18 above). 40.     Next, the Court refers to the witnesses’ written statements concerning the conditions of the applicant’s detention (see paragraph   19 above) and the findings of the CPT, which visited the Kharkiv SIZO in November and December 2011, that is to say after the applicant had already been discharged from the facility (see   paragraph   27   above). 41.     Lastly, the Court notes that it has already found that the conditions of detention in the Kharkiv SIZO did not meet the requirements of Article 3 of the Convention (see Gorbatenko v.   Ukraine , no.   25209/06, §§ 134-37, 28   November 2013; Zakshevskiy v. Ukraine, no.   7193/04, §§ 63-68, 17   March 2016; and Korneykova and Korneykov v.   Ukraine, no. 56660/12, §§ 135-48, 24 March 2016). 42 .     The combination of the above-mentioned factors is sufficient to enable the Court to conclude that the conditions of the applicant’s detention in the Kharkiv SIZO amounted to inhuman and degrading treatment contrary to the requirements of Article 3 of the Convention. There has accordingly been a violation of that provision. Medical treatment 43.     The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 112 ‑ 22, 29 November 2007); Ukhan (cited above, §§   77 ‑ 83); Petukhov v. Ukraine (no.   43374/02, §§ 91 ‑ 98, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 70 ‑ 75, 22 October 2015). 44.     The Court notes that there is no dispute between the parties that the applicant suffers from a long-lasting medical condition (see paragraph 20 above). 45.     The Court further observes that she was placed in detention on 17   January 2011 after being discharged from hospital following a major asthma attack she had suffered earlier that day (see paragraph 21 above). Therefore, the authorities were well aware of her state of health from the very moment of her arrest. 46.     The Court further notes that her state of health was reconfirmed and the necessary medical care specified following the forensic examination of 6   April 2011 (see paragraph 24 above). 47.     Moreover, the Government did not dispute that the applicant had regularly complained to the SIZO medical staff about the continued deterioration of her health, in particular breathlessness, headaches, weakness and a persistent cough (see paragraph 18 above). It does not appear that the above complaints were addressed. 48.     Lastly, it remains unclear to the Court whether any actions were undertaken by the investigator dealing with the applicant’s criminal case upon receipt of the results of the forensic examination that she should be examined at a specialist lung clinic outside the SIZO (see paragraph   24 above). Even assuming that the documentation related to the applicant’s detention in the SIZO could have been destroyed on the expiry of the statutory storage period (see paragraph 34 above), the Court believes that documentation in ongoing cases like the present case (see paragraph 14 above) should be kept intact. 49.     In the light of the foregoing and on the basis of the parties’ submissions, the Court concludes that the medical care provided to the applicant was not adequate, and was not followed by a comprehensive therapeutic strategy. As a result of the inadequacy of the medical care provided to her, the applicant endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and her dignity was undermined. 50 .     There has therefore also been a violation of Article 3 of the Convention in this respect. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 51.     The applicant complained that the domestic court decisions of 27   January, 16 March, 27 April, and 16 May 2011 ordering her continued detention had lacked sufficient reasoning. She relied on Article 5 § 3 of the Convention, which reads as follows: “3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ...” Admissibility 52.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 53.     The applicant submitted that her detention had been unlawful and unjustified, as the courts had failed to give relevant and sufficient reasons in their decisions to detain her. Lastly, she stressed that there had been no risk of her absconding from justice, and that the court decisions had been mainly based on the seriousness of the charges against her. 54.     The Government submitted that the applicant’s detention had been lawful within the meaning of the domestic law and justified by the reasonable suspicion that she had committed a crime. They added that there had been “adequate” and “sufficient” grounds for her continued detention. They thus considered that her detention had been in compliance with Article   5 of the Convention. 55.     The applicable general principles are set out in Buzadji v.   the   Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016). 56 .     The Court observes that the decision of the Kyivskyi District Court of Kharkiv of 27 January 2011 ordering the applicant’s detention did not contain clear and precise reasons but simply referred to the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter (see   paragraph 9 above). 57.     The Court further observes that the seriousness of the charges against the applicant and the risk of her absconding or interfering with the investigation or continuing with her criminal activity were mentioned in the initial order for her detention (see paragraph 9 above). However, that reasoning did not evolve with the passage of time. It appears that, instead of providing reasons to justify the applicant’s continued detention, the courts focused their attention on whether other reasons which could justify changing the preventive measure had been presented to them. 58.     In this connection, the Court reiterates that it is for the domestic authorities to provide relevant and sufficient grounds to justify the accused’s detention (see Merabishvili v. Georgia [GC], no. 72508/13, § 222, 28   November 2017, with further references). 59.     Furthermore, the Court observes that the domestic authorities did not consider any other preventive measures as an alternative to detention (see Osypenko v.   Ukraine , no. 4634/04, §§ 77 and 79, 9   November 2010). 60.     The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine , no.   40107/02, §§ 80-81 and 99, 10   February 2011, and Ignatov v. Ukraine , no. 40583/15, § 41, 15 December 2016). 61.     Having regard to the above, the Court considers that by failing to address the specific facts of the applicant’s situation and by relying essentially and routinely on the seriousness of the charges against her, the authorities extended the applicant’s detention pending trial on grounds which cannot be regarded as “sufficient” and “relevant”. 62 .     There has accordingly been a violation of Article 5 § 3 of the Convention. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 63.     Lastly, the applicant complained, relying on Article 5 §§ 1 (c), 4 and   5 of the Convention, that her arrest by the police on 17 January 2011 had been arbitrary and that the court’s decision of 20 January 2011 extending her police custody to ten days in order to obtain an assessment of her personality had lacked justification, that the domestic courts had failed to properly examine her requests for release lodged on 16 March, 27 April, and 16 May 2011, and that she had had no enforceable right to compensation for her allegedly arbitrary detention. 64 .     Having regard to the facts of the case, the submissions of the parties, and its findings under Articles 3 and 5 of the Convention (see paragraphs   42, 50 and 62 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the other complaints mentioned in the preceding paragraph (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.   47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE   41 OF THE CONVENTION 65.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 66.     The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage. 67.     The Government considered that claim unsubstantiated and excessive. 68.     Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 69.     The applicant also claimed EUR 850 for the costs and expenses incurred before the Court. 70.     The Government considered the amount claimed unsubstantiated. 71.     Regard being had to the legal aid granted to the applicant (see paragraph 2 above) in the amount of EUR 850, the Court considers this issue resolved. Default interest 72.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the applicant’s complaints under Articles 3 and 5 § 3 of the Convention admissible; Holds that there has been a violation of Article 3 of the Convention on account of the conditions of her detention in the Kharkiv SIZO; Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical treatment available to her in detention; Holds that there has been a violation of Article 5 § 3 of the Convention on account of the lack of reasonableness of her detention; Holds that it is not necessary to examine the admissibility and merits of the applicant’s complaints under Article 5 § 1 of the Convention regarding the arbitrariness of her arrest and the extension of her detention in police custody in breach of the Convention requirements, her complaint under Article 5 § 4 of the Convention regarding the domestic courts’ failure to properly examine her applications for release, and her complaint under Article 5 § 5 of the Convention regarding the absence of an enforceable right to compensation for her allegedly arbitrary detention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non ‑ pecuniary damage; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 November 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Claudia Westerdiek   Gabriele Kucsko-Stadlmayer   Registrar   President