CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 septembre 2007

.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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; 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 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS 573 6.9.2007   Press release issued by the Registrar   CHAMBER JUDGMENT KUCHERUK v. UKRAINE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Kucheruk v. Ukraine (application no. 2570/04).   The Court held unanimously that there had been: four violations of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights concerning prison officers’ excessive use of force; the applicant’s handcuffing when in solitary confinement; lack of adequate medical care and assistance and of an effective investigation into the applicant’s complaints of ill-treatment. no violation of Article 5 § 1 (right to liberty and security) of the Convention concerning the applicant’s detention from 7 to 22 July 2003; a violation of Article 5 § 1 concerning the applicant’s detention from 22 July to 6   August 2003; a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) concerning the applicant’s inability to bring proceedings with regard to the lawfulness of his detention in Kharkiv Psychiatric Hospital.   Under Article 41 (just satisfaction), the Court awarded the applicant 20,000   euros (EUR) for non-pecuniary damage and EUR 2,129 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Vladimir Viktorovich Kucheruk, is a Ukrainian national who was born in 1980 and lives in Kharkiv (Ukraine). In 1998 he was diagnosed with chronic schizophrenia.   In March 2001 Mr Kucheruk was convicted of theft and hooliganism and sentenced to a year and a half suspended prison sentence.   While still on probation he was arrested and, on 15 April 2002, charged again with hooliganism and theft. On the same day he was examined at the City Hospital. He was diagnosed with schizophrenia but certified fit for detention on remand. Given the applicant’s previous record, the Kominternovsky District Court of Kharkiv ordered the applicant to be taken to the Kharkiv Regional Pre-trial Detention Centre SIZO no. 27 (“the SIZO”) where he was admitted to a psychiatric ward.   On 17 May 2002 he was transferred to a psychiatric hospital so that a report could be drawn up on the state of his mental health. It concluded that he was suffering from an acute personal disorder which required compulsory in-patient psychiatric treatment. At the beginning of June he was transferred back to an ordinary cell in the SIZO. He was examined on 6 June by the prison psychiatrist who did not prescribe any medication. At the SIZO he showed signs of disturbed behaviour and was prone to aggressive violent outbursts. On 2   July he assaulted another inmate and was transferred to the SIZO medical wing.   On 5 July 2002 the district court found that the applicant’s personal disorder made it impossible at that stage to consider punishment and committed him for compulsory psychiatric treatment. The criminal proceedings against him were suspended until such time as he had recovered.   On 8 July 2002 Mr Kucheruk, detained in the SIZO medical wing, became particularly agitated. The medical staff called three prison guards who ordered him to face the wall and put his hands behind his back. When he failed to obey, the guards beat the applicant with truncheons, forced him to the floor and handcuffed him. On that same day, two prison officers and a doctor examined the applicant and reported that his shoulders and buttocks showed signs of injuries inflicted by truncheons. He was, however, declared apt to be placed in solitary confinement as ordered by the Prison Governor. He spent nine days there, confined to his cell at least 23 hours per day. For seven of those nine days – until 15 July – he was handcuffed at all times. On 10 July he was visited by a psychiatrist. No medication was given to the applicant as he had apparently refused to take any. The prison doctor’s medical notes observed that the applicant repeatedly attempted to free himself from his handcuffs, banging his head against the wall, rolling on the floor and trying to pull his legs between his handcuffed hands.   On 17 July 2002 Mr Kucheruk was transferred back to the psychiatric hospital for compulsory treatment as ordered by the decision of 5 July. That compulsory treatment was extended on various occasions until 28 May 2003 when the Moskovskyy District Court of Kharkiv ordered a psychiatric examination of the applicant in accordance with Article 258 of the Code of Civil Procedure in order to determine the status of his mental health. The compulsory treatment order of 5 July 2002 was lifted on 7 July 2003 and the criminal proceedings against the applicant resumed. However, the applicant was not released from hospital until 6 August 2003 when, in the context of those proceedings, the district court ordered his psychiatric examination. The medical experts concluded that the applicant’s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour and, on 2 September 2003, he was discharged from hospital to the care of his mother. On 4 November 2003 the proceedings were discontinued in view of his lack of criminal responsibility. Mr Kucheruk was later declared legally incapacitated.   In the meantime, on 25 July 2002 the applicant’s mother filed a criminal complaint against the prison guards for ill-treatment of her son. A criminal investigation was brought into the incident by the Governor of SIZO. On 14 August the applicant was examined by doctors. Deep cuts around his wrists and general bruising from blunt solid objects were observed but the report remained inconclusive about when and exactly how those injuries had occurred. On the basis of that report and the eyewitness accounts given by the guards involved and inmates present, the Governor decided on 21 August not to bring criminal proceedings. He concluded in his report that the guards had acted in accordance with the prison regulations and had intended to protect SIZO staff and the applicant himself from his uncontrolled and aggressive behaviour. The applicant’s mother was formally informed about that decision on 16 January 2003.   On three separate occasions between November 2003 and July 2005 the domestic courts quashed the authorities’ decisions not to bring criminal proceedings. In October 2004, the case was taken over by the Kharkiv Regional Prosecutor’s Office which also, ultimately, decided to not bring charges against the prison guards. It found that the applicant had been fit for detention in SIZO and the officers had acted on the basis of orders provided in the regulations. The applicant’s mother challenged that decision and the proceedings are still pending.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 29 December 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Danish), President , Snejana Botoucharova (Bulgarian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”), Rait Maruste (Estonian), Mark Villiger (Swiss) [2] , judges , and also Stephen Phillips , Deputy Section Registrar .   3.     Summary of the judgment [3]   Complaints   Relying on Article 3 and Article 13 (right to an effective remedy), Mr Kucheruk complained of ill-treatment while in detention, in particular disproportionate use of force by the prison guards and handcuffing in solitary confinement, of inadequate conditions of detention and medical care and the lack of an effective and independent investigation into his allegations.   Relying on Article 5 § 1, he also complained, in particular, that his confinement in a psychiatric hospital had been unlawful from 7 July 2003 because, on that date, the compulsory psychiatric treatment order had been revoked.   He further complained under Article 5 § 4 that he had not had access to a court with jurisdiction to review the lawfulness of his continued detention in the SIZO prison and psychiatric hospital. Decision of the Court   Article 3   Excessive use of force The Court noted that the applicant’s injuries, recorded by the prison doctors on 8 July 2002 as having been the result of a beating with truncheons, were sufficiently serious to be considered under Article 3.   In view of the applicant’s earlier agitated behaviour, it could not be said that the prison authorities had been called upon to react to an unexpected development. The three guards involved had outnumbered the applicant. Furthermore, at no stage of the proceedings had witnesses stated that the applicant had attempted to attack, or that his behaviour had in any way endangered, the guards or his fellow inmates. The use of truncheons in the applicant’s case had therefore been unjustified and amounted to inhuman treatment. There had accordingly been a violation of Article 3.   Handcuffing The Court found that the handcuffing for a period of seven days of the applicant, who was mentally ill, without psychiatric justification or medical treatment had to be regarded as constituting inhuman and degrading treatment. There had therefore been a violation of Article 3.   Lack of medical care and assistance The applicant’s solitary confinement and handcuffing suggested that the domestic authorities had not provided appropriate medical treatment and assistance to the applicant.   The applicant was first examined on 16 April 2002 and placed in a psychiatric ward but there had been no subsequent reference to a psychiatrist until 17 May 2002, when the applicant was transferred to hospital for examination. The resulting report’s recommendation that the applicant be given treatment in a specialised hospital was not immediately complied with. Indeed, he was transferred back to an ordinary cell in the SIZO, only having been examined once by a psychiatrist before he had ended up assaulting an inmate. In the Court’s view, that could not be considered to be adequate and reasonable medical attention in the light of the applicant’s serious mental condition. There had therefore been a violation of Article 3 concerning the lack of adequate medical care and assistance provided to the applicant.   Lack of an adequate investigation The Court observed that the initial inquiry into the applicant’s complaints about ill-treatment had not satisfied the minimum requirement of independence since the investigating body – the SIZO governor – was a representative of the authority involved. The investigation had been limited to establishing the fact that the guards had acted in accordance with the relevant regulations and was only based on statements from the guards concerned and inmates present. The examination of the applicant’s injuries had only been carried out 37 days after the use of force and was inconclusive.   Moreover, that inquiry had done little to satisfy the need for public scrutiny, the applicant’s mother only having been informed formally about the refusal to bring criminal proceedings on 16 January 2003 and his lawyer only having been given access to the case-file on 14   August 2003.   The Court observed that an independent investigation into the applicant’s grievances had commenced on 1 October 2004, more than two years and two months after the incident, when the case was taken over by the Kharkiv Regional Prosecutor’s Office. This investigation had not remedied the failings of the initial stages of the proceedings. In particular, there was no indication that the inmates, who had witnessed the incident, had ever been re-interviewed or that any attempts had been made to compensate for the lack of medical information about the applicant’s injuries.   In the Court’s opinion those failings, which the domestic courts highlighted on three separate occasions when quashing the authorities’ decisions not to bring criminal proceedings, as well as the lack of independence, promptness, and public scrutiny provided a sufficient basis for the conclusion that the investigation, which was still pending, had failed to meet the minimum standards of effectiveness. There had therefore been a procedural violation of Article 3.   Article 13   Having regard to its findings under Article 3 that the authorities had failed to carry out an effective investigation into the applicant’s allegations of ill ‑ treatment, the Court did not consider it necessary to examine that issue also under Article 13.   Article 5 § 1   From 7 to 22 July 2003 The court order of 7 July 2003 to lift the applicant’s compulsory treatment had only become final after the expiry of the deadline for appeal on 22 July 2003. The Court noted that the applicant’s detention during that period was therefore covered by the order of 5 July 2002 and there was no violation of Article 5 § 1 in respect of that period.   From 22 July to 6   August 2003 The Moskovskyy court’s ruling of 28 May 2003 ordered the applicant’s psychiatric examination under Article 258 of the Code of Civil Procedure. The Court found that that Article did not expressly authorise detention, and it did not appear that that court had intended the applicant to be detained as a result of its order. Nor could the Kominternovsky court’s decision of 7 July 2003, which lifted the compulsory treatment order and recommended the resumption of criminal proceedings against the applicant, be regarded as a legal basis for his continued detention after 22 July 2003.   T he Court reiterated that administrative formalities, relied upon by the Government, could not justify a delay of more than a few hours in releasing the applicant. Nor could the applicant’s continued detention in hospital after the court order committing him for compulsory psychiatric treatment had been revoked be regarded as a first step in the execution of the order for his release. Accordingly, there had been a violation of Article 5 § 1 on that account.     Article 5 § 4   The Court recalled that it had already considered the system of periodic review concerning confinement in the judgment Gorshkov v. Ukraine in which it concluded that, under that system, the applicant had not been entitled to bring proceedings to test the lawfulness of his continued detention for compulsory medical treatment. The Court saw no reason to depart from its finding in that judgment and, accordingly, found that there had been a violation of Article 5 § 4.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 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.   [1] Under Article 43 of the Convention, 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. [2] Judge elected in respect of Liechtenstein. [3] This summary by the Registry does not bind the Court.