CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 janvier 2020

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UKRAINE (Application no. 47067/11)           JUDGMENT               STRASBOURG 9 January 2020   This judgment is final but it may be subject to editorial revision. In the case of Novikov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Yonko Grozev, President,   Gabriele Kucsko-Stadlmayer,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 47067/11) 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, Mr Sergey Sergeyevich Novikov (“the applicant”), on 20   July 2011. 2.     The applicant, who had been granted legal aid, was initially represented by Ms N. Lysenko, a lawyer practising in Kharkiv. She was succeeded by Ms N. Okhotnikova, a lawyer also practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice. 3.     The applicant complained, under Article 3 of the Convention, that he had had no access to adequate medical treatment while in detention. He also complained, under Article 5 of the Convention, that his pre-trial detention had been unlawful and lacked reasoning, and that there had been no effective procedure available to him to challenge the lawfulness of his detention. Lastly, he complained, under Article 34 of the Convention, that his access to his representative before the Court had been restricted. 4.     On 7 December 2016 the Government were given notice of the application. 5.     On 6 April 2017 the applicant died. On 8 November 2017 his mother, Ms   Maya Mykolayivna Klementyeva, expressed the wish to pursue the proceedings before the Court. 6.     The Government objected to the examination of the application by a Committee as they did not consider that the case was subject to well ‑ established case-law. There was no explanation or reasons given for that opinion. Having considered the Government’s objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v.   Ukraine [Committee], no.   43104/04, §   5, 18   January   2018; Lada v.   Ukraine [Committee], no.   32392/07, §   4, 6   February 2018; and Geletey v.   Ukraine [Committee], no. 23040/07, § 4, 24 April 2018). THE FACTS THE CIRCUMSTANCES OF THE CASE 7.     The applicant, Mr Sergey Sergeyevich Novikov, was a Ukrainian national who was born in 1973. Criminal proceedings against the applicant 8.     On 26 June 2010 the applicant was arrested by officers of the Security Service on suspicion of drug trafficking. 9.     On 28 June 2010 he was brought before the Chervonozavodskyy District Court in Kharkiv, which extended the duration of the applicant’s detention in police custody to ten days with a view to obtaining an assessment of his personality. 10 .     On 5 July 2010 the same court ordered the applicant’s detention on remand. The decision stated that he had been accused of a serious crime and could otherwise escape and hinder the investigation or continue with his criminal activity. No further reasons were provided by the court. 11.     On 25 August, 24 September, 15 October, 24 November 2010 and 18   March 2011 the courts extended the applicant’s pre-trial detention, most recently until 26 June 2011. Those decisions were based mainly on the grounds that the case was complex and the proceedings were pending, that the applicant had been accused of a serious crime, that he might evade investigation and trial and obstruct the establishment of the facts in the case, and that he might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicant’s personal information had been duly noted. 12.     On 25 June 2011 the investigation was completed and the case was referred with an indictment to the Kominternovskyy District Court for trial. 13 .     On 20 July 2011 at the preliminary hearing of the applicant’s criminal case, the above court examined an application by the applicant for release and dismissed it as unfounded. 14.     The applicant remained in detention until 6 April 2012, when he was released under an undertaking not to abscond. Medical care provided to the applicant 15.     Prior to his arrest the applicant had undergone surgery to his right foot in 2009, as all five toes had been amputated and the resulting wounds had failed to heal. 16.     According to the applicant, at the time of his arrest he had still been suffering from post-surgery complications, and while in the Kharkiv pre ‑ trial detention facility (“the SIZO”) he had not had access to adequate medical care and his state of health had deteriorated, causing him severe pain. 17 .     According to the Government, when he was placed in the SIZO on 6   July 2010 the applicant had been examined by the SIZO medical personnel. It was noted that the applicant had undergone surgery on his right foot in 2009, and that his toes had been amputated. 18.     On 8 July 2010 the applicant consulted a specialist in therapeutics, who diagnosed him with obliterating endarteritis [1] of the lower limbs. The applicant was prescribed outpatient treatment, in the form of anti ‑ inflammatory and anaesthetic medicines, vitamins and bandages. The applicant was also recommended to avoid being in a standing position for a long period of time and to limit the physical load placed on his lower limbs. 19.     On 15 October 2010, 18 January, 1 February, 25 May, 2,   4   September, 20 December 2011 and 14 March 2012 the applicant further consulted a specialist in therapeutics, who prescribed him treatment for his medical condition. 20 .     From 27 January to 14 February 2012 the applicant underwent an inpatient treatment at the prison hospital. Upon discharge from that facility he was recommended further outpatient treatment at the SIZO. THE LAW LOCUS STANDI OF THE APPLICANT’S mother 21.     The Court notes at the outset that the applicant died while the case was pending before the Court. His mother, Ms Maya Mykolayivna Klementyeva, 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 example, 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 Maya Mykolayivna Klementyeva can pursue the application initially brought by the applicant. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 22.     The applicant complained that his detention from 26   June until 20   July 2011 had not been duly authorised and that the decisions authorising his continued detention had lacked sufficient reasoning. He relied on Article   5   §§ 1 and 3 of the Convention, which read as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 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 23.     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits Article 5 § 1 of the Convention 24 .     The applicant submitted that his detention from 26 June until 20 July 2011 had been arbitrary, as it had not been covered by a court order. 25.     The Government disagreed and submitted that the applicant’s detention had been lawful and that there had been no breach of his Convention rights. 26.     The Court observes that the basis on which the applicant was held in custody for the period of time indicated in paragraph 24 above was that a bill of indictment had been submitted to the relevant trial court. It furthermore observes that the domestic courts did not return to the issue of the applicant’s detention until 20 July 2011 when the trial court held a preliminary hearing in the applicant’s criminal case (see paragraph 13 above). In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness under Article 5 § 1 of the Convention (see Kharchenko v.   Ukraine , no. 40107/02, §   71, 10 February 2011). 27 .     The Court does not see any reason in the present case to depart from its earlier findings. Accordingly, there has been a violation of Article 5 § 1 of the Convention. Article 5 § 3 of the Convention 28.     The applicant submitted that his pre-trial detention had been too long and had not been based on sufficient grounds. 29.     The Government contested the applicant’s arguments, stating that his detention had been reasonable and justified. 30.     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). 31.     Turning to the circumstances of the present case, the Court observes that the applicant was detained, within the meaning of Article 5 § 1 (c) of the Convention, from 26 June 2010 until 6 April 2012. His pre-trial detention therefore lasted approximately one year and nine months. 32.     The Court furthermore observes that the seriousness of the charges against the applicant and the risk of his absconding or interfering with the investigation were mentioned in the initial order for his detention (see   paragraph 10 above). Those reasons remained the main grounds for the applicant’s detention until his release. The Court notes that the decisions on the applicant’s detention were couched in general terms and contained repetitive phrases. They did not suggest that the courts had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances applicable at the various stages of the proceedings. Moreover, with the passage of time, the applicant’s continued detention required further justification, but the courts did not provide any further reasoning. Furthermore, 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). 33.     The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention the domestic courts referred to the same set of grounds (if there were any) throughout the period of the respective applicant’s detention (see, for example, Kharchenko , cited above, §§ 80-81 and 99, and Ignatov v. Ukraine , no. 40583/15, §§ 41-42, 15 December 2016). 34.     Having regard to the above, the Court considers that by failing to address specific facts or to consider other measures as an alternative to pre ‑ trial detention and by relying essentially and routinely on the seriousness of the charges, the authorities extended the applicant’s detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration. 35 .     There has accordingly been a violation of Article 5 § 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36.     The applicant complained that he had not had access to adequate medical treatment in detention. He 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.” 37.     The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of a lack of medical treatment. They contended that he should have lodged his health care complaints with the prosecutor’s office. The Government submitted in the alternative that the above complaint should be dismissed for being lodged too late. In their view, in the absence of effective domestic remedies regarding complaints of the lack of access to medical assistance, the applicant should have lodged his complaint within six months from the moment of his placement in detention. As to the substance of the applicant’s complaint, the Government submitted that the applicant had been provided with adequate medical care and treatment (see paragraphs 17-20 above). 38.     The applicant contested the Government’s arguments regarding the inadmissibility of the above complaint and submitted that the inadequate medical treatment provided to him had amounted to a violation of Article   3 of the Convention. 39.     The Court does not find it necessary to examine the Government’s objection regarding non-exhaustion of domestic remedies, although similar arguments of the Government have previously been dismissed (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), since this complaint is in any event inadmissible for the following reasons. 40.     The Court observes that the applicant’s initial complaint was confined to a general statement that the medical assistance provided to him in detention in the SIZO had been inadequate, with no details given. The applicant did not take the opportunity to develop this complaint after notification of the case had been given to the Government. 41.     His allegations of the deterioration of his health were not supported by any evidence – either from his medical file, or in the form of any relevant complaints to the domestic authorities. 42.     On the contrary, as can be seen from the Government’s submissions and a copy of the applicant’s medical file, the applicant’s post-operative condition was regularly monitored by the SIZO medical unit. The applicant was given medication and his right foot was bandaged. Furthermore, he underwent inpatient treatment in connection with his condition (see paragraphs 17-20 above). 43.     There is nothing in the case file to suggest that the applicant’s medical condition posed a serious threat to his health or caused extraordinary complications to his everyday functioning. Moreover, the available material does not suggest that the applicant did indeed need special treatment and care or that the level of care available to him was manifestly insufficient. 44.     In view of the aforementioned considerations, the Court finds that the applicant’s complaint of inadequate medical assistance in the Kharkiv SIZO must be rejected as manifestly ill-founded, pursuant to Article   35   §§   3   (a) and 4 of the Convention. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 45.     The applicant also complained under Article 5 § 4 of the Convention that his right to a review of the lawfulness of his detention had been breached. He furthermore complained in substance, under Article 34 of the Convention, that his access to his representative had been restricted. 46 .     Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 of the Convention (see paragraphs 27 and 35 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 47.     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.” 48.     The applicant’s mother claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. The Government argued that that claim was unsubstantiated. 49.     Making its assessment on an equitable basis, the Court awards the applicant’s mother EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 50.     The applicant’s mother did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head. 51.     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 that the applicant’s mother, Ms Maya Mykolayivna Klementyeva, has standing to continue the present proceedings in the applicant’s stead; Declares admissible the applicant’s complaints under Article 5 §§ 1 and   3 of the Convention regarding the unlawfulness of his detention from 26   June to 20 July 2011, as well as the lack of reasonableness of his detention on remand; Declares inadmissible the applicant’s complaint under Article 3 of the Convention regarding the lack of access to adequate medical treatment while in detention; Holds that there has been a violation of Article 5 § 1 of the Convention; Holds that there has been a violation of Article 5 § 3 of the Convention; Holds that it is not necessary to examine the admissibility and merits of the applicant’s complaint under Article 5 § 4 of the Convention regarding the trial courts’ failure to carry out a proper examination of his applications for release and his complaint under Article 34 of the Convention that his access to his representative before the Court had been restricted; Holds (a)   that the respondent State is to pay the applicant’s mother, Ms Maya Mykolayivna Klementyeva, within three months, EUR 6,000 (six 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 claim for just satisfaction. Done in English, and notified in writing on 9 January 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   Yonko Grozev Deputy Registrar   President   [1] A form in which the lumina of the smaller vessels become narrowed or obliterated as a result of the proliferation of the tissue of the intimal layer.