CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 17 décembre 2019

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UKRAINE (Application no. 19103/11)             JUDGMENT   STRASBOURG 17 December 2019   This judgment is final but it may be subject to editorial revision. In the case of Burlakov and Lysenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Síofra O’Leary, President,   Ganna Yudkivska,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 26 November 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19103/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Yevgeniy Aleksandrovich Burlakov (“the first applicant”) and Mr Ilya Vladimirovich Lysenko (“the second applicant”), on 17 March 2011. 2.     The applicants, who had been granted legal aid, were represented by various lawyers, most recently by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.     On 7 December 2016 the Government were given notice of the applicants’ complaints concerning: their allegations of ill-treatment, the lack of an effective investigation into those allegations, and the lack of domestic remedies (Articles 3 and 13 of the Convention); the poor conditions of their transport and detention on hearing days (Article 3 of the Convention); their pre-trial detention (Article 5 §§ 3, 4 and 5 of the Convention); inadequate medical assistance for the second applicant during his pre-trial detention (Article 3 of the Convention); and the alleged hindrance of their communication with the Court (Article 34 of the Convention). The remainder of the application was declared inadmissible pursuant to Rule   54 § 3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The first applicant was born in 1977 and the second applicant was born in 1979. At the time of their application, they were detained in Kharkiv pre-trial detention centre. The applicants’ arrest and their alleged ill-treatment 5.     At about 11.30 p.m. on 25 June 2010 the applicants were arrested by officers of the State Security Service on suspicion of drug trafficking. In the course of their arrest they were allegedly beaten and subjected to different forms of ill-treatment. According to the applicants, the officers continued to beat and threaten them after they had been arrested. Medical assessment of the first applicant and investigation into the alleged ill-treatment 6 .     In the early hours of 26 June 2010 an ambulance was called to attend to the first applicant. The ambulance doctors noted that he had bruises on the right thigh, and in the lumbar and patellar regions. At about 8 a.m. on 26   June 2010 the first applicant was taken to hospital, where the doctors there noted the bruises on the right thigh and in the lumbar region. Between 29 June and 2 July 2010 a medical expert examination was carried out in respect of the first applicant. The expert found that he had bruises on the arms, trunk of the body and left leg. According to the expert, those injuries were minor, and they had been caused by blunt solid objects three to five days before the examination. 7.     On 21   August 2010 an investigator of the Kharkiv regional prosecutor’s office, having conducted a pre-investigation inquiry, refused to open criminal proceedings into the alleged ill-treatment of the first applicant, for lack of the constituent elements of a crime on the part of the officers. The investigator found: that the medical expert had examined the first applicant on 29 June 2010 and had noted that his injuries related to the period between 24 and 26 June 2010; that those injuries were minor; and that in any event, the officers had been empowered to resort to special means and take other measures in order to arrest a suspect. 8 .     On 14 April 2011 the Chervonozavodskyy District Court of Kharkiv upheld the investigator’s decision of 21   August   2010 as lawful and substantiated. The court noted that the first applicant might have sustained the injuries when he had actively resisted lawful arrest. The court referred to the written statements of witnesses who had stated that the first applicant had strongly resisted arrest and the officers had had to take measures to arrest him. 9 .     On 20 May 2011 the investigator of the Kharkiv regional prosecutor’s office, having conducted a pre-investigation inquiry, refused to open criminal proceedings against the first applicant in relation to his allegedly resisting arrest. The investigator stated that, according to the report of an officer of the State Security Service, the first applicant had been arrested when he had refused to get out of his car; in the course of his arrest the first applicant had pushed the officers and tried to hit them. Having questioned the witnesses to the event, the investigator found that the first applicant had not resisted arrest, but had instead showed disobedience to the officers. This amounted to conduct which was not criminally punishable. 10.     On 4 July 2011 the Kharkiv Regional Court of Appeal upheld the decision of 14 April 2011 taken by the first-instance court. Medical assessment of the second applicant and the relevant investigation 11 .     On 29 June 2010 the second applicant was examined by a medical expert, who noted that he had bruises on the head, right arm and right leg. According to the expert, those injuries were minor, and they had been caused by blunt solid objects five to eight days before the examination. 12.     On 10 September 2010 the investigator of the Kharkiv regional prosecutor’s office refused to open criminal proceedings into the alleged ill ‑ treatment of the second applicant, for lack of the constituent elements of a crime on the part of the officers. The investigator referred to the medical expert report, which suggested that the injuries had been sustained between 21 and 24 June 2010. He further noted that in any event, the officers had been empowered to resort to special means and take other measures in order to arrest a suspect. 13.     The second applicant appealed against that decision. On 8 December 2010 the Chervonozavodskyy District Court of Kharkiv upheld the investigator’s decision of 10 September 2010 as lawful and substantiated. On 25 July 2011 the Kharkiv Regional Court of Appeal upheld the decision of the first-instance court, emphasising the expert’s finding that the injuries had been sustained five to eight days before the examination. The applicants’ pre-trial detention and related issues 14.     Following the applicants’ arrest they were brought before the Chervonozavodskyy District Court, which authorised their detention. Subsequently, that court and the Kharkiv Court of Appeal issued a number of rulings extending the applicants’ pre-trial detention. The courts’ decisions were based mainly on the grounds: that the case was complex and the proceedings were ongoing; that the applicants were accused of serious crimes; that they might evade investigation and trial and obstruct the establishment of the facts in the case; and that they might continue committing crimes. Some of the decisions also contained a statement confirming that the applicants’ state of health and family situation had been duly noted. 15.     In 2011 the first applicant designated his girlfriend as a person who could communicate with the European Court of Human Rights on his behalf, and the second applicant designated his sister. Allegedly, the applicants were prevented from meeting with their representatives, and their access to the case file was limited. 16.     In July 2011 the Kominternovskyy District Court of Kharkiv committed the applicants for trial. The preventive measure (their pre-trial detention) was left unchanged. Subsequently, during the trial the applicants made repeated applications for release, but to no avail. 17.     On 15 August 2014 the Kominternovskyy District Court found the applicants guilty of, inter alia , drug trafficking, and sentenced them to more than nine years’ imprisonment. Conditions of detention and transport 18.     According to the applicants, during their transport to and from court hearings they had been detained in prison vans and transit cells of the local court with insufficient access to fresh air and no ventilation. They had thus been exposed to high summer temperatures for long periods of time. Moreover, they had been exposed to tobacco smoke, because some detainees had smoked while being transported. Food had not been provided. There had also been occasions on which they had been transported in vans together with inmates suffering from tuberculosis. 19.     On 23   February   2012 the Kharkiv regional prosecutor’s office informed the first applicant that his complaint concerning inadequate conditions of detention was unfounded. They found that on 8 August 2011, when the first applicant had been escorted to a court in a vehicle with other detainees, one of those detainees had been suffering from tuberculosis; however, that detainee had been wearing a flu mask and he had been held separately during his trip and during his time in the court. 20 .     On 20   April 2012 and 25   June 2013 the Kharkiv regional prosecutor’s office and the Kharkiv city police dismissed similar complaints by the first applicant. They noted in particular that on 22 May 2013 the first applicant had been transported together with another detainee who had been suffering from tuberculosis because the escort officers had not been duly informed of his illness and the need for him to be transported separately. 21 .     On 3 October 2013 the office of the Ombudsman informed the second applicant that his allegations about the inappropriate conditions of his detention in a transit cell of a court had been examined and those allegations had been partly substantiated; the authorities had developed a plan to ensure appropriate sanitary and hygiene conditions and a ventilation system in court transit cells by the end of 2013. 22.     Doctors attended to the second applicant during his detention and examined him in relation to spinal disc herniation, a gall bladder polyp and some other illnesses. He was provided with medical treatment and put under further observation. RELEVANT DOMESTIC LAW 23.     The relevant provisions of the Code of Criminal Procedure of 28   December 1960 (in force at the material time) can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010). THE LAW ALLEGED VIOLATIONs OF ARTICLEs 3 and 13 OF THE CONVENTION ON ACCOUNT OF the applicants’ ILL ‑ TREATMENT 24.     The applicants complained under Article 3 of the Convention that they had been ill-treated by officers of the State Security Service and that there had been no effective investigation into those allegations. They further contended under Article 13 of the Convention that they did not have effective remedies, including civil remedies, to redress the alleged violations. 25.     Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26.     Article 13 of the Convention reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Admissibility 27.     The Court notes that the complaints by the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits 28.     The applicants contended that there had been sufficient evidence proving that they had been ill-treated, and that the domestic authorities had not provided a reliable and comprehensive explanation for the injuries which they had sustained. They further contended that the investigation into their allegations of ill-treatment had not been objective, thorough and effective. They also submitted that, contrary to Article 13 of the Convention, a civil claim for damages was not available to them, given that such a claim depended on the outcome of a criminal investigation. 29.     The Government did not make any comments. Article 3 of the Convention 30.     The Court reiterates that Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see Zalevskiy v. Ukraine , no. 3466/09, § 59, 16 October 2014). 31.     The Court observes that shortly after the applicants’ arrest both applicants were diagnosed with various injuries. Reviewing the facts of the present case in the light of its well-established jurisprudence (see, in particular, Kozinets v.   Ukraine , no.   75520/01, §§ 51-54 and 59-60, 6   December 2007), the Court considers that the injuries they complained about raised an arguable ill-treatment claims, triggering an obligation on the part of the national authorities to investigate them. 32.     At the same time, regard being had to the evidential gaps and the circumstances in which the applicants were arrested, notably possible legitimate use of force, the Court finds it problematic to establish beyond a reasonable doubt that the applicants’ injuries were caused as alleged. For the reasons set out below, the Court considers that the difficulty in determining the substance of the applicants’ allegation of ill-treatment stems from the authorities’ failure to investigate their complaints effectively (see, in particular, Timofejevi v. Latvia , no. 45393/04, § 81, 11 December 2012 and Barysheva v. Ukraine , no. 9505/12, §   91, 14 March 2017). 33.     The Court reiterates that the minimum standards of effective investigation include the requirements that it must be independent, impartial, thorough and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Aleksandr Nikonenko v. Ukraine , no. 54755/08, § 44, 14 November 2013, with further references). 34.     The Court considers that the contradictions in the domestic authorities’ findings as to whether or not the first applicant resisted arrest show that the principal issue was not sufficiently scrutinised and required further investigation. The Court also notes that the allegations of ill ‑ treatment were examined without a full-scale investigation being opened, which limited the scope of possible procedural measures. Indeed, the Court has found pre-investigation inquiries to be incompatible with the standards of an effective remedy (see Strogan v.   Ukraine , no.   30198/11, §   53, 6   October 2016 with further references). 35.     The same holds true with regard to the second applicant, who was arrested together with the first applicant and submitted a similar ill ‑ treatment claim. However, his allegations were discarded in the course of the limited pre-investigation inquiries. The Court considers that, given the similar circumstances of the applicants’ arrests, the medical evidence in respect of both applicants, and especially in respect of the second applicant, required more scrutiny and verification on the part of the authorities, in the course of adequate investigative procedures. 36.     The Court notes that it has repeatedly condemned the failure by Ukrainian authorities to carry out effective investigations when allegations of ill-treatment are made by persons arrested on suspicion of having committed crimes. Notably, in the case of Kaverzin v.   Ukraine (no.   23893/03, §§   173-80, 15   May 2012), the Court found that the authorities’ reluctance to ensure a prompt and thorough investigation into ill ‑ treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention. 37.     In view of the circumstances of the present case and its earlier case ‑ law, the Court concludes that, in the present case, no serious effort was made to investigate the allegations of ill-treatment made by the applicants. 38.     There has accordingly been a violation of Article 3 of the Convention in respect of both applicants. Article 13 of the Convention 39.     The Court notes that the criminal proceedings concerning the applicants’ ill-treatment were crucial to the exercise of their civil right to claim compensation for injuries resulting from a criminal act: in the absence of an identified perpetrator, a civil action would be futile (see Afanasyev v.   Ukraine , no. 38722/02, § 77, 5 April 2005). The Court finds that the shortcomings of the criminal proceedings at issue effectively prevented the applicants from lodging a civil claim and obtaining compensation. 40.     There has therefore been a violation of Article 13 of the Convention in respect of both applicants. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONDITIONS OF TRANSPORT and DETENTION ON HEARING DAYS 41.     The applicants complained under Article 3 of the Convention of the poor conditions in which they had been transported to and from court hearings, and in which they had been detained in transit cells while they had been waiting for court hearings. Relying on the same provision, the second applicant also complained that the medical assistance afforded to him while he had been in detention had been inadequate. Admissibility 42.     The Court notes that the applicants’ complaints regarding conditions of transport and detention in court transit cells are not manifestly ill-founded within the meaning of Article 35   §   3   (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 43.     As regards the second applicant’s allegation that he was not provided with adequate medical treatment, the Court observes that the general principles regarding the quality of medical care in detention have been stated in a number of its previous judgments (see, among many other authorities, Blokhin v. Russia [GC], no. 47152/06, §§ 135-40, with further references). In the present case, having examined the file, the Court cannot find that the medical care provided to him was inadequate or insufficient. The available material does not show that the second applicant had been deprived of essential medical treatment in respect of his conditions. 44.     In view of the above, the Court finds that the second applicant’s complaint concerning inadequate medical treatment in detention is manifestly ill-founded and must be rejected in accordance with Article   35 §§ 3   (a) and 4 of the Convention. Merits 45.     The applicants referred to their factual submissions and maintained that the treatment to which they had been subjected on hearing days had been incompatible with Article 3 of the Convention. 46.     The Government did not provide any comments. 47.     The Court notes that the applicants’ allegations concerning the conditions of their transport and detention on hearing days were examined at domestic level and partly admitted by the domestic authorities (see paragraphs 20 and 21 above). Assessing the applicants’ submissions as a whole, the Court finds that they are sufficiently detailed and consistent. The applicants’ arguments have not been refuted by the Government. 48.     Similar conditions of transport and detention have given rise to findings of violations of Article 3 of the Convention in a number of the Court’s judgments against Ukraine (see, for example, Andrey Yakovenko v.   Ukraine , no. 63727/11, §§ 98-103, 13 March 2014, and Yaroshovets and   others v. Ukraine , nos. 74820/10 and 4 others, §§   101 ‑ 104, 3 December 2015, with further references to the Court’s case ‑ law and international reports). 49.     The Court does not find any reason to take a different approach in the present case, and concludes that the conditions of the applicants’ transport and detention on the days of court hearings were in breach of Article 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 50.     The applicants complained that their pre-trial detention had been contrary to Article 5 §§ 3, 4 and 5 of the Convention. They argued in particular that their pre-trial detention had been excessive, that they did not have an effective procedure for review of the lawfulness of their detention, and that they had not had an enforceable right to compensation for the unlawful detention. 51.     The relevant parts of Article 5 of the Convention read 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. 4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5.     Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” Admissibility 52.     The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits Article 5 § 3 of the Convention 53.     The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.   30210/96, § 110, ECHR 2000-XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references). 54.     In the leading case of Kharchenko v. Ukraine (no. 40107/02, §§   79 ‑ 81 and 99, 10 February 2011), the Court found a violation in respect of issues similar to those in the present case. 55.     The Court notes that the applicants’ uninterrupted pre-trial detention lasted for more than four years and one month. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of this complaint. Having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the applicants’ pre-trial detention was excessive. 56.     This complaint therefore discloses a breach of Article 5 § 3 of the Convention in respect of both applicants. Article 5 § 4 of the Convention 57.     The Court reiterates that it has previously found in other cases that Ukrainian law, as it stood at the relevant time, did not provide for a procedure for reviewing the lawfulness of continued detention after the completion of pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine , no. 2161/02, §   108, 28   October 2010; Pleshkov v.   Ukraine , no.   37789/05, §   42, 10   February 2011; Kharchenko v.   Ukraine , no.   40107/02, §   100, 10   February 2011; Tsygoniy v. Ukraine , no. 19213/04, § 78, 24 November 2011; and Taran v. Ukraine , no. 31898/06, § 81, 17 October 2013). Those findings are equally pertinent for the present case. 58.     The Court therefore holds that there has been a violation of Article   5 § 4 of the Convention in respect of both applicants. Article 5 § 5 of the Convention 59.     The Court observes that the applicants’ complaint in this regard is similar to complaints which it has examined in a number of other cases against Ukraine (as a recent example, see Sinkova v. Ukraine , no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the applicants did not have an enforceable right to compensation for their detention, in contravention of paragraphs 3 and 4 of Article 5. 60.     There has therefore been a violation of Article 5 § 5 in respect of both applicants. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 61.     The applicants further complained that they had been prevented from effectively applying to the Court, in view of the restrictions imposed on their contact with their representatives and the insufficient access which they had had to the case file. 62.     Article 34 of the Convention provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 63.     Having examined the file, the Court finds that the applicants’ allegations are unsubstantiated. In particular, it has not been shown that any of the restrictions or limitations on communication with their representatives in any way prevented the applicants from lodging their complaints with the Court or having those complaints properly examined. 64.     The Court concludes that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. 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.     In respect of non-pecuniary damage, the first applicant claimed 1,000,000 euros (EUR) and the second applicant claimed EUR 200,000. 67.     The Government did not provide any comments. 68.     The Court considers that the applicants must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards each applicant EUR 4,000 in respect of non ‑ pecuniary damage. Costs and expenses 69.     The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head. Default interest 70.     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 admissible both applicants’ complaints under Articles 3 and 13 of the Convention concerning their ill-treatment and the lack of an effective investigation and effective remedy in that regard; both applicants’ complaints under Article 3 of the Convention concerning the conditions of their transport and detention on hearing days; and both applicants’ complaints under Article 5 §§ 3, 4 and 5 of the Convention; Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention; Declares the remainder of the application inadmissible; Holds that there has been a violation of Article 3 of the Convention in respect of both applicants, on account of their alleged ill ‑ treatment; Holds that there has been a violation of Article 13 of the Convention in respect of both applicants; Holds that there has been a violation of Article 3 of the Convention in respect of both applicants, on account of the conditions of their transport and detention on hearing days; Holds that there has been a violation of Article 5 § 3 of the Convention in respect of both applicants; Holds that there has been a violation of Article 5 § 4 of the Convention in respect of both applicants; Holds that there has been a violation of Article 5 § 5 of the Convention in respect of both applicants; Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)         EUR 4,000 (four thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 4,000 (four thousand euros) to the second applicant, 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 amounts 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Milan Blaško   Síofra O’Leary Deputy Registrar   President