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FIFTH
SECTION
CASE OF
VENIOSOV v. UKRAINE
(Application
no. 30634/05)
JUDGMENT
STRASBOURG
15
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision
In the case of Veniosov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30634/05) 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 Dmitriy Valentinovich
Veniosov (“the applicant”), on 27 July 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mr Y. Zaytsev and Mrs V. Lutkovska.
- The
applicant alleged, in particular, that he had been detained pending
criminal proceedings against him in degrading conditions and
unlawfully.
- On
9 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
- The
applicant was born in 1968 and lives in Stary Krym.
- In
February 2005 the Prosecutor’s Office of the Autonomous
Republic of Crimea (ARC) instituted criminal proceedings against
several police officers, including the applicant, on charges of abuse
of position.
- On
28 February 2005 the applicant was arrested in connection with these
proceedings. In the course of the proceedings the applicant was
detained in various detention facilities, including the Feodosiya
Temporary Detention Centre (“the Feodosiya ITT”), where
he was held from 25 August 2005 to 5 January 2006 and from 25 January
to 5 February 2006.
- On
3 March 2005 the applicant was brought before the Central District
Court of Simferopol (the “District Court”) which ordered
that more information on the applicant be obtained to decide on his
further detention. The District Court also decided that, pending the
collection of this information, the applicant’s detention
should be extended until 10 March 2005.
- On
10 March 2005 the District Court extended the applicant’s
detention for two months. It noted, in particular, that the applicant
had been charged with numerous counts of abuse of position, connected
to ill treatment of individuals and unlawful entry into
residential premises. Regard being had to the nature of the charges
and to the applicant’s official status, there was a high risk
that he would engage in new criminal acts, put pressure on witnesses
or obstruct the investigation in other ways.
- On
22 March 2005 the Court of Appeal of the ARC (“the Court of
Appeal”) upheld this decision.
- On
26 April 2005, following a request by the prosecutors’ office,
the District Court extended the applicant’s detention for
another two months, noting that the investigation had still been
unable to collect all the evidence, and that the applicant’s
personal situation had not changed.
- On
17 May 2005 the Court of Appeal upheld this decision.
- By
24 June 2005 the investigation had been completed and the
prosecutors’ office referred the case to the Chairman of the
Court of Appeal to determine which trial court would consider the
applicant’s case.
- On
26 June 2005 the applicant requested the governor of the detention
facility to release him in view of the fact that the court order for
his detention had expired. His request was refused, with reference to
the fact that the pre-trial investigation was finished and the bill
of indictment had been transferred to the judicial authorities.
- On
4 July 2005 the Chairman of the Court of Appeal referred the case to
the Feodosiya Town Court (hereafter “the Town Court”) for
trial.
- On
10 August 2005 the Town Court committed the applicant for trial.
According to the Government, on the same date the court upheld the
applicant’s detention, having found no reasons to release him.
According to the applicant, the court did not decide on the issue of
extension of his detention on that date. The parties did not provide
a copy of the relevant Town Court decision.
- On
4 January 2006 the Town Court, having examined the case in the course
of adversarial proceedings, in which the applicant was represented by
an advocate of his choice, found the applicant guilty of several
counts of abuse of authority and sentenced him to three years and six
months’ imprisonment. The court also prohibited the applicant
from occupying a law-enforcement post for three years.
- On
25 May 2006 the Court of Appeal upheld the judgment of 4 January
2006.
- On
30 November 2006 the Supreme Court dismissed a cassation appeal by
the applicant as unsubstantiated.
B. The conditions of the applicant’s detention in
the Feodosiya ITT
- From
25 August 2005 to 5 January 2006 and from 25 January to 5 February
2006 the applicant was held in the Feodosiya ITT (Temporary Detention
Centre).
1. The applicant’s account
- According
to the applicant, during his stay in the Feodosiya ITT he shared a
five-square-metre cell with four to seven other detainees. The toilet
and washstand in the cell were not separated from the living
quarters. The cell had no windows, no table and no chairs, and the
ventilation was unsatisfactory. For sleeping arrangements the cell
had a wooden platform. Once every ten to twelve days the detainees
were taken out for half an hour’s exercise. At all other times
they remained confined to their cells. Before he was detained, the
applicant had been suffering from hypertension. While he was in
detention his health worsened to the point that on two occasions an
ambulance had to be called.
- On
18 July 2006 the Prosecutors’ Office of the ARC notified the
applicant, in response to his complaints about the conditions of his
detention, that disciplinary action had been taken against the
Feodosiya ITT governor and three officers for unspecified breaches of
the law.
- On
19 July 2006 the ARC Department of the Ministry of Interior
acknowledged to the applicant that the Feodosiya ITT had not been
properly equipped and that the detainees had been taken out for
exercise only once every ten to twelve days because of the
overcrowding of the ITT facilities. They noted that the ITT building
had been constructed in 1944 and had not undergone any capital
renovations since that time. They also noted that the overcrowding of
the ITT had been due to restrictions on the admission of detainees by
the Simferopol no. 15 Pre-Trial Detention Facility (SIZO).
2. The Government’s account
- According
to the Government, the Feodosiya ITT had seventeen cells, capable of
accommodating thirty-seven inmates. All the cells were located in the
basement and had no windows. However, the cells were well lit by
electric light, enabling the detainees to read, equipped with a
ventilating system ensuring circulation of air and furnished with
wooden sleeping platforms, tables, toilets and wash-stands. The
detainees were provided with pillows and mattresses. While he was in
detention, the applicant was provided with meals, time for outdoor
exercise and access to washing facilities. On two occasions (15 and
16 November 2005) an ambulance was called to examine the applicant at
his request. He was diagnosed with a respiratory infection and
hyperthermia and found not to need in-patient treatment. During his
entire stay in the Feodosiya ITT, the applicant was examined
regularly by medical professionals and made no other health
complaints except those mentioned above.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
- The
relevant domestic law concerning pre-conviction detention can be
found in the judgment in the case of Molodorych v. Ukraine,
no. 2161/02, §§ 57-58, 28 October 2010).
- The
relevant international material concerning the conditions of
detention is summarised in the judgment in the case of Melnik v.
Ukraine (no. 72286/01, § 47-49, 28 March 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in the
Feodosiya ITT had been degrading. He
referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government offered no comments on the admissibility of this
complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant alleged that the conditions of his detention in the
Feodosiya ITT had been degrading.
- The
Government disagreed. They maintained that the conditions of the
applicant’s detention had been satisfactory and sufficient to
meet his basic needs.
- The Court observes that, according to its case-law,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 of the Convention. The assessment
of this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim (see as a recent authority
Znaykin v. Ukraine, no. 37538/05, § 47, 7 October
2010). The Court has consistently stressed that the suffering and
humiliation involved in any treatment or punishment must in any event
go beyond that inevitable element of suffering or humiliation
connected with a given form of legitimate treatment or punishment.
Measures depriving a person of his liberty may often involve such an
element. In accordance with this provision the State must ensure that
a person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment, his
health and well-being are adequately secured (see as a recent
authority Kharchenko v. Ukraine, no. 40107/02, § 51,
10 February 2011).
- Turning
to the facts of the present case, the Court notes that the applicant
was detained in the Feodosiya ITT for about five months. Based on the
available materials, most of the time throughout his stay in this
facility the applicant remained confined to a cell allowing at most
1.25 square meters per detainee. The fact of overcrowding was
acknowledged by the domestic authorities (see paragraph 23 above).
Having regard to its case-law concerning overcrowding in detention
facilities and the relevant standards of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (which are quoted, for example, in the judgment in the
case of Kalashnikov v. Russia, no. 47095/99, § 97, ECHR
2002 VI, and Melnik v. Ukraine, no. 72286/01, § 47,
28 March 2006), the Court finds that the problem of overcrowding in
the applicant’s case raises of itself a serious issue under
Article 3 of the Convention.
- The
Court further notes that the overcrowding was aggravated by the fact
that the applicant’s cell had no windows. As a result, the
applicant, who had been taken out for exercise only once every ten to
twelve days, had no access to daylight and fresh air for prolonged
periods of time, which might have been especially burdensome to him,
regard being had to his hypertension.
- The
Court further notes that there is no evidence in support of the
Government’s assertion that the applicant had adequate sleeping
arrangements, that his cell was equipped with necessary furniture and
that the artificial ventilation and lighting systems operated
properly. Regard being had to the fact that in November 2005 the
ambulance doctors had diagnosed the applicant with hyperthermia, the
Court is particularly doubtful as to the adequacy of the ventilation
system.
- Finally,
the Government failed to counter the applicant’s assertions
that the toilet in his cell was not separated from the living area,
which means that the applicant, who shared the cell with at least
three other inmates at any given point of time, had no privacy when
using it.
- The
foregoing considerations are sufficient for the Court to conclude
that the physical conditions of the applicant’s detention in
the Feodosiya ITT, which lasted for some five months, amounted to
degrading treatment, in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
- The
applicant next complained that his detention from 27 June 2005 to the
date of his conviction by the first-instance court had been unlawful.
He relied on Article 5 § 1 (c) of the Convention, which reads 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; ...”
A. Admissibility
- The
Government did not comment on the admissibility of this complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the applicant’s detention had been
in compliance with applicable domestic law. In particular, in the
period between 27 June and 10 August 2005 the applicant had been held
in detention for the reason that he had been awaiting his committal
to trial. That period of detention was therefore based on the legal
procedure provided for by the Code of Criminal Procedure of Ukraine.
Between 10 August 2005 and 4 January 2006 the applicant’s
detention had been based on the court decision of 10 August 2005 by
which the Town Court, among other things, upheld the detention
measure in his respect.
- The
applicant disagreed.
- The
Court reiterates that, in proclaiming the right to liberty, Article 5
§ 1 contemplates the physical liberty of the person and its aim
is to ensure that no one should be dispossessed of this liberty in an
arbitrary fashion. The list of exceptions to the right to liberty
secured in Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision (see Doronin v. Ukraine, no. 16505/02, §
52, 19 February 2009, with further references).
- Turning
to the facts of the present case, the Court notes that between
27 June and 10 August 2005 the applicant’s detention was
not covered by any court decision and was justified merely by the
fact that the file was being transferred from the investigator to the
court and the applicant had been awaiting committal for trial. The
Court has previously found that such practice, which is recurrent in
Ukraine, is not compatible with the principles of legal certainty and
protection from arbitrariness (see Kharchenko v. Ukraine,
no. 40107/02, § 98, 10 February 2011). The Court does not see a
reason to depart from its previous findings in the present case.
Accordingly, the applicant’s detention between 27 June and
10 August 2005 was not lawful.
- As
regards the period between 10 August 2005 and 4 January 2006, the
parties disagree as to whether the Town Court took a decision
concerning the applicant’s detention on that date (see
paragraph 16 above). No copy of the relevant decision has been
provided. However, assuming that the decision in issue was in fact
taken, as appears from the Government’s submissions, in any
event it upheld rather than extended the applicant’s detention
and no express reasons for extension of the measure were provided.
The Court has already held in other cases that such a practice, which
is recurrent in Ukraine, whereby court orders made during the trial
stage set no time-limits for the further detention of a defendant,
and uphold rather than extend his or her previous detention, is not
compatible with the requirements of Article 5 § 1 (c) of the
Convention (see, for example, Kharchenko, cited above,
§ 98). The Government have not provided any arguments warranting
the Court’s departure from this approach in the present case.
- Regard
being had to its findings in paragraphs 44 and 45 above, the Court
concludes that there has been a violation of Article 5 § 1 (c)
of the Convention with respect to holding the applicant in custody
between 27 June 2005 and 4 January 2006.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 § 1 (c) of the
Convention that his arrest and detention between 28 February and 27
June 2005 had not been based on relevant and sufficient reasons;
under Article 5 § 3 of the Convention that the length of his
detention before conviction had been excessive and under Article 6 §
3 (b) of the Convention that the conditions of his detention had
impeded his ability to prepare his defence properly in the criminal
proceedings.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant asked the Court to award fair compensation for the
violations found. He did not claim a specific amount.
- The
Government did not comment on this issue.
- The
Court has no doubt that the applicant must have suffered anxiety and
distress as a result of the violations of the Convention that cannot
be compensated for adequately by the Court’s findings. Making
its assessment on an equitable basis, the Court awards the applicant
the sum of 6,000 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses within the
time-limit fixed. Consequently, the Court does not make any award
under this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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 complaints under Article 3 of the
Convention (physical conditions of the applicant’s detention in
the Feodosiya ITT) and Article 5 § 1 (c) of the Convention
(lawfulness of the applicant’s detention between 27 June 2005
and 4 January 2006) admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
Ukraine at the rate applicable on the date of settlement;
(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.
Done in English, and notified in writing on 15 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
