CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 mai 2020

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UKRAINE (Application no. 70878/12)         JUDGMENT             STRASBOURG   28 May 2020   This judgment is final but it may be subject to editorial revision . In the case of Raspryakhin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Gabriele Kucsko-Stadlmayer, President,   Mārtiņš Mits,   Anja Seibert-Fohr, judges, and Victor Soloveytchik, Deputy Section Registrar, Having regard to: the application 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   Igor   Oleksiyovych Raspryakhin (“the applicant”), on 24 October 2012; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the conditions, the lawfulness and the length of the applicant’s pre-trial detention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 28 April 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The case concerns the alleged inadequacy of the conditions of the applicant’s pre-trial detention in breach of Article 3 and the alleged unlawfulness and allegedly unreasonable duration of his detention on remand in breach of Article 5 §§ 1 and 3 of the Convention. THE FACTS 1 .     The applicant was born in 1967 and lives in Kropyvnytskyi (Kirovograd at the material time). The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. 2.     The Government were represented by their Agent, most recently Mr   I.   Lishchyna of the Ministry of Justice. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Criminal proceedings against the applicant and his detention 4.     On 4 July 2009 the Kirovograd Regional Police Department opened a criminal case against the applicant and another person on suspicion of fraud involving particularly large sums of money. On the same day the applicant was arrested. 5.     On 7 July 2009 the Leninskyy District Court of Kirovograd (“the Leninskyy Court”) extended the applicant’s detention in police custody to ten days with a view to forming an assessment of his personality. The court noted that the applicant had fully admitted his own guilt. 6.     Subsequently, the applicant was charged with fraud involving particularly large sums of money, pretending to engage in business activities, founding a criminal organisation, money laundering, bribery and forging documents. The number of persons accused during the criminal investigation in question grew to twenty-two. 7 .     On 14 July 2009 the Leninskyy Court remanded the applicant in pre ‑ trial detention as a preventive measure (for two months, until 4   September 2009). It noted that he had continued to assert his own guilt at the hearing on that occasion. The judge stated that the seriousness of the charges against the applicant outweighed the fact that he had no criminal record, enjoyed positive character references and was married. The court stated in its ruling, without providing any further details, that the applicant might try to abscond or hinder the investigation if allowed to remain at liberty. 8 .     In the course of the investigation, the domestic courts extended the applicant’s pre-trial detention a number of times (until 4 November 2011). The grounds for those extensions were, in addition to those mentioned in the court’s initial detention order (see paragraph 7 above), the seriousness of the charges, the fact that the investigators still had a lot of work ahead of them and the absence of any reasons for the applicant to be released, since either no new circumstances warranting release had been identified or the circumstances that had led to the decision to place the applicant in pre-trial detention persisted. 9.     On 28 October 2011 the pre-trial investigation was completed and the case, together with the relevant bill of indictment, was sent to the Kirovskyy District Court of Kirovograd (“the Kirovskyy Court”) for trial. 10 .     On 13 December 2011 that court remitted the case for additional pre-trial investigation on the ground that the right of the applicant (and some of the other accused) to a defence had not been respected, since they had not been able to study the case file in the presence of their lawyers. The court decided to maintain their detention as a preventive measure. On 22   March 2012 that decision was upheld on appeal. 11 .     In the course of the pre-trial investigation, on 1 June 2012 the Kirovograd Regional Court extended the applicant’s pre-trial detention until 5   August 2012. 12 .     On 3 August 2012 the investigation was completed and the case, together with the relevant bill of indictment, was sent for trial to the Kirovskyy Court, which held a preliminary hearing on 3   September 2012. It decided to transfer the case to the Leninskyy Court. By the same ruling, it maintained the preventive measure in respect of the applicant. In the meantime the criminal case was transferred to another court for trial, namely the Kirovograd District Court of Kirovograd (“the Kirovograd Court”). 13.     On 10 October 2014 the Kirovograd Court granted a request for release by the applicant, citing the length of his pre-trial detention (over five years), his disability, the absence of any criminal record and the fact that he had a minor child and elderly parents to care for. On the same day the applicant was released. Conditions of the applicant’s detention in the Kirovograd SIZO 14.     During the entire period of his detention from 15 July 2009 to 10   October 2014, the applicant was held in the Kirovograd pre-trial detention centre (“the SIZO”). He described the conditions of his detention as follows. 15 .     The applicant was detained in four different cells – each measuring about 8 sq. m and shared by between four and six people. On two occasions, in May 2012 and October 2014 – each time for about two weeks – he was held in a cell measuring about 20 sq. m and shared by between ten and twelve inmates. 16 .     There was no hot water supply in the SIZO, and cold water was supplied only for short periods. The cell lacked any natural lighting, as its only window was covered by three rows of metal bars. 17 .     The applicant had a daily outdoor walk for thirty minutes. He had access to a shower once a week. RELEVANT international material 18 .     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 9 to 21 September 2009 (CPT/Inf (2011) 29) reads as follows: “74.At the time of the 2009 visit, the total number of prisoners in Ukraine stood at 145,000 (including 36,000 on remand), compared to some 178,000 at the time of the 2005 visit. Thus, the positive trend towards a reduction of the prison population already noted in the report on the 2005 visit continues. That said, overcrowding persists in remand establishments, the ones in Kyiv, Kherson, Crimea, Odessa and Kirovograd being cited as the most problematic. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19.     The applicant complained that the material conditions of his detention in the Kirovograd SIZO had been poor. 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.” Admissibility 20.     The Government submitted that the applicant had failed to exhaust domestic remedies as he should have lodged his complaints concerning his conditions of detention with the prosecutor’s office and the domestic courts. 21.     The applicant submitted that the remedy referred to by the Government had already been examined by the Court in other cases against Ukraine and found to be ineffective. 22.     The Court notes that it has already examined and dismissed similar objections, finding the remedy referred to by the Government ineffective (see, for instance, Buglov v. Ukraine , no. 28825/02, §   74, 10 July 2014). 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 his complaint  that is, a remedy which could have prevented the violations from occurring or continuing, or which could have afforded him appropriate redress. The Court therefore considers that the applicant’s complaint about the conditions of his detention cannot be rejected for failure to exhaust domestic remedies. 23.     The Court notes that the above complaint is not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 24 .     The applicant reiterated the complaints that he had outlined in his application form, namely as regards the overcrowding in the cells, the lack of water supply, and the lack of access to hygiene facilities, natural light, ventilation and daily walks. He also submitted copies of written statements given by his cellmates confirming the applicant’s description of the conditions of his detention, and photographs of the cell in which he had been detained. The photographs show a toilet facility with no door, a washstand, beds (from four to eight depending on the cell), and laundry hanging on ropes. 25 .     The Government submitted that the conditions of the applicant’s detention in the SIZO had been in compliance with domestic prison rules. During his detention in the SIZO, the applicant had been held in cells of varying sizes (from 7.53 sq. m to 58.1 sq. m) containing varying numbers (from three to twenty) of inmates. They did not comment on the written statements given by the applicant’s cellmates and on the photographs he had submitted. 26.     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). 27.     The Court notes that, in the present case, the applicant provided a detailed description of the conditions in the Kirovograd SIZO during his detention, and provided relevant documentary evidence in support (see   paragraphs 15-17 and 24 above). 28.     The Court notes that, in the present case, the Government acknowledged that during his stay in the Kirovograd SIZO the applicant had had at his disposal less than 3 sq. m of personal space. In particular, as reported by the Government (see paragraph 25 above), the cells in which the applicant had been detained had allowed between approximately 2.5 sq. m and 2.9 sq. m of floor space per inmate, with the average number of inmates per cell varying from three to twenty persons. 29.     The Court also notes the applicant’s allegations that there were problems with lighting, ventilation, and hygiene conditions (see   paragraph   16 above). 30.     Next, the Court refers to the witnesses’ written statements concerning the conditions of the applicant’s detention, the photographs and the findings of the CPT, which visited the Kirovograd SIZO in September 2009, at the time when the applicant was being held in that facility (see   paragraph 18 above). 31 .     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 Kirovograd 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. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 32.     The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention on remand had been unlawful and unjustified. The relevant provisions of Article 5 of the Convention 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 33.     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 34 .     The applicant submitted that his detention from 4 November to 13   December 2011 and from 5 August to 3 September 2012 (see   paragraphs   8 and 10-12 above) had been arbitrary, as it had not been covered by a court order. 35.     The Government disagreed and submitted that there had been no breach of the applicant’s Convention rights. 36 .     The Court observes that the basis for the applicant’s detention for the periods of time indicated in paragraph 34 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 13 December 2011 and 3 September 2012 respectively, when the trial court held preliminary hearings in the applicant’s criminal case. 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). 37.     The Court does not see any reason to depart from its findings in the present case. Accordingly, there has been a violation of Article 5 § 1 of the Convention. Article 5 § 3 of the Convention 38.     The applicant submitted that his pre-trial detention had not been based on sufficient grounds and that its length had been unreasonable. 39.     The Government contested the applicant’s arguments, stating that his detention had been justified and reasonable. 40.     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). 41.     Turning to the circumstances of the present case, the Court observes that for the purposes of Article 5 § 3 of the Convention, the applicant was detained from 4 July 2009 to 10 October 2014. His pre-trial detention therefore lasted for five years and three months. 42.     The Court observes that the seriousness of the charges against the applicant and the risk of his absconding or interfering with the respective investigations were mentioned in the initial order for his detention (see   paragraph 7 above). Those reasons remained the main grounds for the applicant’s detention until his release. The Court furthermore 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 at the respective stages of the proceedings. 43.     Moreover, with the passage of time, the applicant’s continued detention required further justification, but the courts did not provide any further reasoning. It appears that the domestic courts did not attempt to demonstrate the existence of specific facts proving that the declared risks outweighing the rule of respect for individual liberty existed. In fact, the burden of proof was wrongly shifted onto the applicant (compare Khayredinov v. Ukraine , no.   38717/04, §§ 40-41, 14 October 2010, and Makarenko v. Ukraine , no. 622/11, § 91, 30 January 2018). 44.     The Court notes in particular that the domestic courts repeatedly justified the applicant’s further detention by referring to the absence of reasons to release him (see paragraph 8 above), whereas Article 5 § 3 of the Convention requires that the opposite approach be adopted, that is, the national authorities should indicate grounds for a person’s continuing detention (see Komarova v. Ukraine , no. 13371/06, § 79, 16 May 2013). 45.     The Court also refers to its above findings that on certain occasions the applicant’s detention was not covered by a court order (see paragraph 36 above). 46.     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 had referred to the same set of grounds (if there were any) throughout the period of the particular 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). 47.     Having regard to the above, the Court considers that by failing to address specific facts or consider other measures as an alternative to pre ‑ trial detention and by relying essentially and routinely on the seriousness of the charges and the risk of the applicant absconding or interfering with the investigation, the authorities extended his detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration. 48 .     There has accordingly been a violation of Article 5 § 3 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 49.     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.” 50.     The applicant claimed 13,200 United States dollars and 677.91   Ukrainian hryvnias in respect of pecuniary damage allegedly sustained by his father in sending him food parcels while he had been in detention. He furthermore claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage. 51.     The Government considered the above claims unsubstantiated and excessive. 52.     The Court finds that the applicant’s claim in respect of pecuniary damage is not substantiated and therefore rejects it. On the other hand, it awards him EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 53.     The applicant also claimed EUR 3,600 for the costs and expenses incurred before the Court. He asked that the above award be paid directly into his representative’s bank account. 54.     The Government considered the amount claimed unsubstantiated. 55.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 56.     Regard being had to the documents in its possession, the complexity of the case, the fact that the applicant’s representative intervened in the proceedings at the communication stage only, and the legal aid granted to the applicant in the amount of EUR 850 (see paragraph 1 above), the Court awards the applicant EUR 150. The award is to be paid into Mr   Tarakhkalo’s bank account, as indicated by the applicant (see, for example, Belousov v.   Ukraine , no.   4494/07, §§   116 ‑ 17, 7   November 2013, and Khlaifia and Others v. Italy [GC], no.   16483/12, § 288, 15   December 2016 (extracts)). 57.     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   §§ 1 and 3 of the Convention admissible; Holds that there has been a violation of Article 3 of the Convention on account of the conditions of his detention in the Kirovograd SIZO; Holds that there have been violations of Article 5 §§ 1 and 3 of the Convention on account of the arbitrariness of his detention from 4   November to 13 December 2011 and from 5 August to 3 September 2012, as well as the lack of relevant and sufficient reasons for his detention on remand; Holds (a)   that the respondent State is to pay, 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative, Mr   M.O.   Tarakhkalo; (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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 May 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Victor Soloveytchik   Gabriele Kucsko-Stadlmayer Deputy Registrar   President