CEDH · PRESS;GENERAL;ENG — 5 avril 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sCDC260C0 { margin-top:12pt; margin-bottom:6pt; page-break-after:avoid } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .s6F57788 { margin-top:12pt; margin-bottom:6pt } .s7E99EE1A { margin-top:6pt; margin-bottom:12pt } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS 177 5.4.2005   Press release issued by the Registrar   CHAMBER JUDGMENT NEVMERZHITSKY v. UKRAINE   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Nevmerzhitsky v. Ukraine (application no. 54825/00).   The Court held, unanimously, that there had been: a violation of Article 3 (prohibition of torture) of the European Convention on Human Rights, concerning the force-feeding of the applicant; a violation of Article 3 (prohibition of degrading treatment) of the Convention, concerning   both the conditions of the applicant’s detention and the lack of adequate medical care; a violation of Article 5 § 3 (right to be brought promptly before a judge) concerning the lack of prompt judicial reviews of the lawfulness of the applicant’s continued pre-trial detention; a violation of Article 5 § 3 concerning the length of the applicant’s detention; a failure by the Ukrainian Government to fulfil their obligation under Article 38 § 1 (a)   to provide all necessary facilities to enable the Court to establish the facts in the case.   And, by six votes to one, that there had been: a violation of Article 5 § 1 (c) concerning the lawfulness of three periods of the applicant’s detention.   Under Article 41 (just satisfaction), the Court awarded the applicant 1,000 euros (EUR) for pecuniary damage, EUR 20,000 for non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in English.)     1.     Principal facts   The applicant, Yevgen Ivanovych Nevmerzhitsky, is a Ukrainian national who was born in 1970 and lives in Kyiv (Ukraine). He was formerly the manager of a branch of the Poltava Bank in Kyiv.   From 8 April 1997 to 22 February 2000 he was detained in the Kyiv Region Temporary Investigative Isolation Unit (SIZO No. 1), charged with making unlawful currency transactions, theft, tax evasion, abuse of power by an official and fraud and forgery committed by an official.   The applicant’s detention was initially ordered by the investigator of the Ministry of the Interior on 8 April 1997 and a warrant for his arrest was confirmed by the Kyiv City Prosecutor on 11 April 1997 and reviewed by a court on 28 May 1997. The applicant’s detention was extended five times by the relevant prosecutors, by six to 18 months. On 1 November and 16   December 1999 Kyiv City Court and the Supreme Court rejected the applicant’s requests for release, even though the maximum statutory period of permitted detention had expired.   During his time in detention the applicant went on hunger strike on a number of occasions and was subjected to force feeding.   He complained that he was placed in a 7m² cell with 12 other detainees, which had no drinking water or access to water for washing and that he caught microbic eczema and scabies because the cell was infested with bedbugs and head lice. On 1 April 1999 he was placed in the isolation cell of the detention centre for 10 days while still on hunger strike. The 7m² cell was damp, with wet concrete walls, it was not ventilated and he was not allowed to have regular outdoor walks. The cell had no toilet and the water only turned on a few times a day.   On 19 February 2001 the applicant was convicted of, among other things, forgery committed by an official, aggravated forgery and abuse of power. He was sentenced to five years and six months’ imprisonment and all his personal property was confiscated. On the basis of the Amnesty Law of 11   May 2000, and because the applicant had already been detained for two years, 10 months and 15 days, he was exempted from serving his sentence.   Following his release on 23 February 2000, the applicant was admitted to Kyiv City Hospital, where he stayed until 17 March 2000. He has subsequently continued to receive medical treatment under the general supervision of a psychiatrist.     2.     Procedure and composition of the Court   The application was lodged on 21 June 1999 and declared admissible on 25 November 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Ireneu Cabral Barreto (Portuguese), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Antonella Mularoni (San Marinese), Danute Jočienė (Lithuanian), judges , and also Sally Dollé , Section Registrar . 3.     Summary of the judgment   Complaints   Relying on Article 3 (prohibition of torture or inhuman or degrading treatment), the applicant complained about the conditions of his detention, especially in the isolation cell. In particular he alleged that he was denied adequate medical treatment and that he was force-fed while on hunger strike. He also complained in relation to the length and lawfulness of his detention, relying on Article 5   § 1(c) (right to liberty and security) and Article   5   §   3 (right to be brought promptly before a judge).   Decision of the Court   Article 38   The Court noted that the Ukrainian Government had failed to provide it with a number of important documents concerning the applicant’s health and the decisions to prolong his detention and to force-feed him.   The Government had also failed to provide any convincing explanation for their refusal to comment on particular questions raised by the Court or to provide relevant documents and decisions and medical reports in the case. The Court therefore considered that it could draw inferences from the Government’s conduct.   Bearing in mind the difficulties arising from the establishment of the facts in the case and in cases similar to it, and in view of the importance of a Government’s cooperation in Convention proceedings, the Court found that the Ukrainian Government had failed to fulfil their obligation under Article 38 § 1 (a) to provide all necessary facilities to enable the Court to establish the facts in the case.   Article 3   Concerning the conditions of the applicant’s detention   The Court noted that it could not establish with certainty the conditions of the applicant’s detention, which occurred quite some time ago. However, taking into account that the applicant’s submissions were consistent, thorough and corresponded in general to the inspections of the pre-trial detention centres in Ukraine conducted by the Council of Europe’s Committee for the Prevention of Torture and the Commissioner of Human Rights of the Ukrainian Parliament and that the Ukrainian Government had made no comment on those submissions, the Court concluded that the applicant was detained in unacceptable conditions and that such detention amounted to degrading treatment in breach of Article 3.   The Court further found that the applicant’s situation was aggravated by the fact that he was subjected to disciplinary punishment in an isolation cell of the detention centre in conditions that were totally unacceptable under Article   3.   Moreover, the Court noted that the medical reports submitted by the parties showed that in the course of his detention the applicant contracted various skin diseases (in particular, scabies and eczema). Clearly the applicant’s health significantly deteriorated, judging by his medical examinations and his further placement in hospital after his release on 23   February 2000. While it was true that the applicant received some medical treatment for those diseases, their initial contraction, recurrence, aggravation and the applicant’s further medical treatment after release, demonstrated that he was detained in an unsanitary environment, with no respect for basic hygiene. Those conditions had such a detrimental effect on his health and well-being that the Court considered that they amounted to degrading treatment, in violation of Article 3.   Concerning the force-feeding of the applicant   The Court reiterated that a measure which was considered to be medically necessary - such as force-feeding a detainee to save her/his life - could not in principle be regarded as inhuman and degrading. However, such a measure had to have been proved to be medically necessary and the procedural guarantees for the decision to force-feed had to be complied with. Moreover, the manner in which the person concerned was subjected to force-feeding during the hunger strike should not go beyond a minimum level of severity envisaged by the Court’s case law under Article 3.   In the applicant’s case, the Court reiterated that the Ukrainian Government had failed to provide it with a written medical report or the decision of the head of the detention institution, both of which were obligatory under the decree setting out the procedure to follow on force-feeding detainees. As the Government had not demonstrated that force-feeding the applicant was medically necessary, it could only be assumed that it was arbitrary. Procedural safeguards were therefore not respected in the face of the applicant’s conscious refusal to take food and the Ukrainian authorities did not act in the applicant’s best interests in subjecting him to force-feeding.   As to the manner in which the applicant was fed, the Court assumed that the authorities complied with the instructions in the relevant decree. However, the restraints (handcuffs, a mouth-widener ( роторозширювач ) and a special rubber tube inserted into the food channel)   which were applied – in the event of resistance using force – could amount to torture within the meaning of Article 3, if there was no medical necessity.   The Court concluded that the force-feeding of the applicant, without any medical justification having been shown by the Government, using the equipment foreseen in the decree, but resisted by the applicant, constituted treatment of a severe character warranting the characterisation of torture. The Court therefore considered that there had been a violation of Article 3.   Concerning the medical care available to the applicant   The Court reiterated that the force-feeding administered to the applicant in itself demonstrated that the domestic authorities did not provide him with appropriate medical treatment and assistance during his detention. On the contrary, the force-feeding had not been shown to have been related to his particular state of health or to the strict medical necessity of saving his life.   The Court also noted that the applicant was examined by a doctor for the first time one-and-a-half months after he had been detained. Prior to his detention, the applicant had not suffered from any skin disease and his state of health was normal. An independent medical examination of 8   May 1998 recommended that the applicant be given treatment in a specialised hospital for microbic eczema. However, the recommendation was not followed.     In addition, the applicant was not examined or attended by a doctor from 5 August 1998 to 10   January   2000. In the Court’s view, that could not be deemed to be adequate and reasonable medical attention, given the applicant’s hunger strike and the diseases from which he was suffering. Furthermore, the Government had provided no written records concerning the force-feeding throughout the hunger strike, the kind of nutrition used or the medical assistance the applicant received.   In those circumstances, the Court considered that there had been a violation of Article 3 concerning the lack of adequate medical treatment and assistance provided to the applicant while he was detained, which amounting to degrading treatment.   Article 5 § 1 (c) The lawfulness of the applicant’s continued detention The Court noted that a period of detention was, in principle, “lawful” if based on a court order. However, there were no court decisions taken as to the applicant’s continued detention from 29 May 1997 to 1   November 1999. The decisions to prolong the applicant’s detention were taken by prosecutors, who were a party to the proceedings, and could not in principle be regarded as “independent officers authorised by law to exercise judicial power”. In view of their role and status, they could not carry out the appropriate review of the lawfulness of the decision to prolong the applicant’s detention.   The courts only reviewed the decisions of the prosecution for the applicant’s continued detention on 1   November and 16   December 1999, when they refused the applicant’s request for release, without giving any particular reasons and without specifying the period of further detention, even though the maximum statutory period of detention in the applicant’s case had already expired on 30   September 1998. Further investigations were ordered on 1   November 1999 by the Kyiv City Court and 16   December 1999 by the Supreme Court.   The Court concluded that three periods of the applicant’s detention were unlawful, within the meaning of Article 5 § 1(c), from:   1   October 1997 (the date of the second prolongation of the period of his detention falling within the Court’s jurisdiction) to 1 November 1999; 16 to 22 February 2000 (the maximum statutory period of detention in the event of an additional investigation ordered by the court was two months, which expired on 16 February 2000; however, the applicant was not released until 23   February 2000); and, 22 to 23 February (the applicant was not released until 23 February 2000, a day after it had been decided to release him).   The Court concluded, therefore, that there has been a violation of Article 5 § 1(c) in that the applicant was detained without lawful ground in these three periods.   Article 5 § 3 Whether the applicant was brought promptly before a court to review his prolonged detention The Court observed that the applicant was held in pre-trial detention from 8 April 1997 to 23   February 2000.   Even though the investigation of economic offences presented the authorities with special problems, the Court could not accept that it was necessary to detain the applicant for so long in pre-trial detention without either prompt or regular judicial supervision. The Court therefore found that there had been a breach of Article   5 §   3. Length of the applicant’s detention The Court found that the applicant’s detention lasted a total of two years, 10 months and 15 days, of which the Court could take into consideration two years, five months and 12 days, from 11 September 1997, when the Convention entered into force in respect of Ukraine.   The Court considered that the original reasons given by the prosecution - possible interference with the investigation and suspicion that the applicant had committed the offences with which he was charged   – might have sufficed to warrant the applicant’s initial detention on remand. However, as the proceedings progressed and the collection of the evidence neared completion, that ground would have inevitably become less relevant. Given its conclusions regarding the applicant’s state of health and conditions of detention, the Court considered that he should not have been subjected to prolonged detention. In the absence of any concrete evidence to the contrary from the Government, the Court found that the applicant’s continued detention was neither necessary nor justified by special circumstances. Moreover, the Court noted that no alternative measures were effectively considered by the domestic authorities to ensure the applicant’s appearance at trial.   In sum, the Court found that the reasons relied on by the authorities to justify the applicant’s continued detention for more than two years and five months, although possibly relevant and sufficient initially, lost these qualities as time passed.     There had accordingly been a violation of Article   5 §   3.     Judge Antonella Mularoni expressed a dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ). Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.