Last Updated on April 16, 2021 by LawEuro
INTRODUCTION. The case concerns the applicant’s complaints under Article 3 that the medical treatment provided to him while in detention had been inadequate; under Article 5 §§ 1 and 3 that his pre-trial detention had been unlawful, unjustified and lengthy; under Article 5 § 4 that he had not had the right to a meaningful review of the lawfulness of his detention; under Article 6 § 1 that the criminal proceedings against him had been unreasonably lengthy; and under Article 13 that he had not had an effective domestic remedy in respect of the above complaints.
FIFTH SECTION
CASE OF NIKOLISHEN v. UKRAINE
(Application no. 65544/11)
JUDGMENT
STRASBOURG
15 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Nikolishen v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 65544/11) 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 Oleg Mykolayovych Nikolishen (“the applicant”), on 12 October 2011;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3, Article 5 §§ 1, 3 and 4, Article 6 § 1 and Article 13 of the Convention, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 18 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the applicant’s complaints under Article 3 that the medical treatment provided to him while in detention had been inadequate; under Article 5 §§ 1 and 3 that his pre-trial detention had been unlawful, unjustified and lengthy; under Article 5 § 4 that he had not had the right to a meaningful review of the lawfulness of his detention; under Article 6 § 1 that the criminal proceedings against him had been unreasonably lengthy; and under Article 13 that he had not had an effective domestic remedy in respect of the above complaints.
THE FACTS
2. The applicant was born in 1981 and lives in Kyiv. He was represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.
3. The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Criminal proceedings against the applicant and his detention
5. The applicant has been a practising lawyer since 2008.On 27 January2011 he was arrested by the police on suspicion of car theft. On the same day a police investigator instituted criminal proceedings no. 02‑19259 against him in respect of the above charge.
6. Under the provisions of the domestic legislation (see paragraph 31 below), criminal charges against a practising lawyer could only be brought by the Prosecutor General, the Deputy Prosecutor General, the Crimea Prosecutor, the regional prosecutor or the Kyiv City prosecutor. In this connection, the applicant challenged the decision to institute criminal proceedings against him, arguing that it did not comply with the requirements of the law.
7. On 28 January 2011 the Darnytskyy District Court of Kyiv (“the District Court”) authorised the applicant’s pre-trial detention.The relevant judicial decisions stated, without providing specific details, that the applicant was accused of a serious crime and might otherwise escape and hinder the investigation or continue with his criminal activity.The applicant was placed in the Kyiv Pre-trial Detention Centre (“the SIZO”).
8. On 11 February 2011 new charges in respect of additional car thefts were brought against the applicant by the acting Kyiv City prosecutor. The new charges along with those brought in the context of proceedings no. 02‑19259 were joined into a single set of criminal proceedings.
9. On 18 March 2011 the District Court extended the applicant’s pre‑trial detention within the joint criminal proceedings for the same reasons as those mentioned in paragraph 7 above.
10. In the meantime, on 4 March 2011, the District Court had found that the institution on 27 January 2011 of criminal proceedings no. 02-19259 against the applicant had been unlawful owing to the failure to comply with the requirements of the procedural law. That decision was upheld on appeal on 6 April 2011 and became final. The applicant did not provide any information regarding whether he had sought redress at the domestic level in connection with the decision.
11. Subsequently, the applicant’s detention within the joint criminal proceedings was extended by the domestic courts a number of times. The courts’ decisions extending the applicant’s detention were based mainly on the grounds that the case was complex and the proceedings still pending, that the applicant was accused of serious crimes, 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.
12. On 26 May and 24July2011 the courts, when extending the applicant’s pre-trial detention, observed that the investigator’s request for the extension of the applicant’s detention had been insufficiently reasoned and that overall progress in the investigation had been slow.
13. On 30 November 2012, in the course of the trial, the trial court altered the preventive measure in respect of the applicant to release on bail, subject to him depositing the amount of bail in the court’s bank account. Bail was set at 76,500 Ukrainian hryvnias (approximately 7,365 euros). The decision was not subject to appeal.
14. In August, October and November 2012, in the course of the trial, the applicant lodged applications to be released, referring, inter alia, to his deteriorating state of health, but to no avail.
15. On 3 December 2012 the applicant’s defence lawyers deposited the amount of bail in accordance with the trial court’s decision, and on the same day the applicant was released from detention.
16. At the time the parties replied to each other’s observations before the Court (June 2017), the criminal proceedings against the applicant were still pending, having been heard by courts at two levels of jurisdiction. The parties did not inform the Court of any further developments in the applicant’s case.
II. Medical treatment provided to the applicant
17. On 22 July 2011, while in the SIZO, the applicant was diagnosed with a sebaceous cyst. He was advised to undergo a special examination on that account, which could not be performed in the SIZO as no appropriate facilities were available.
18. In a letter of 22 November 2011 addressed to the applicant’s defence lawyer, the SIZO authorities confirmed the above diagnosis (see paragraph 17 above) and noted that the applicant had been advised to undergo non-urgent surgery in connection with his condition. The SIZO also stated that the applicant could be treated at the prison hospital only after the court sentence against him had become final.
19. On 26 December 2011 the SIZO authorities reported that the applicant had been diagnosed with lymphoma and liver, digestive and urinary diseases. In order to clarify the lymphoma diagnosis, the applicant required a biopsy, to be performed outside the SIZO. There is no information in the case file as to whether that examination was carried out.
20. On 22 February and 16 March 2012 the SIZO authorities provided similar information about the applicant’s health to that mentioned in paragraphs 17 and 19 above.
21. On 13 April 2012 the SIZO authorities informed the applicant’s defence lawyer that the applicant had been diagnosed, in addition to the diseases identified earlier, with diseases affecting his heart and spine and hepatitis C. They noted that the applicant had been receiving inpatient treatment in the SIZO. The nature of the treatment was not specified.
22. On 28 April 2012 the SIZO authorities confirmed that the applicant had been undergoing inpatient treatment in the SIZO, consisting of taking a number of medicines. Furthermore, they noted that there was no oncologist or haematologist on the SIZO staff. Performing a biopsy was not possible in the SIZO either.
23. On 23 May 2012 the SIZO authorities reported that in addition to the diseases identified previously, the applicant had been diagnosed with pyelonephritis. The applicant was again advised to have non-urgent surgery on account of his lymphoma.
24. On 7 July 2012 the SIZO authorities reported that on 6 June 2012 the applicant had been diagnosed with suspected non-Hodgkin lymphoma. Asternal puncture was performed. In order to clarify the applicant’s diagnosis, it was recommended that a further sternal puncture be performed.
25. After performing the sternal puncture again, on 13 August 2012 the doctor made a provisional diagnosis of non-Hodgkin lymphoma. It was recommended that the applicant have additional tests in order to clarify the diagnosis and put in place a treatment strategy.
26. Following the applicant’s complaints that he had received inadequate medical treatment in detention, the Kyiv City prosecutor’s office conducted an inquiry. On 30 August 2012 a report was drawn up stating that the applicant’s state of health was serious and that he required urgent medical treatment in a specialist medical facility. On the same day the prosecutor’s office instructed the SIZO to transfer the applicant to a specialist medical facility for treatment.
27. On 19 September 2012 the SIZO authorities wrote a letter to the applicant’s defence lawyer, the content of which made it clear that the applicant had remained in the SIZO. Following the deterioration of the applicant’s state of health, on 18 October 2012 he was transferred to the hospital in Bucha Prison no. 85 for treatment.
28. According to the information provided by the hospital in Bucha Prison no. 85 on 27 and 29 November 2012, the applicant had non-Hodgkin lymphoma, chronic hepatitis C, chronic pancreatitis, chronic pyelonephritis, urinary stone disease and arthrosis. It was noted that the applicant was in a life-threatening condition. He was advised to undergo an examination and treatment in a specialist medical facility.
29. On 22 April 2013, after his release from the SIZO (see paragraph 15 above), the applicant was recognised as a person suffering from a category 2 disability. The second category is the intermediate one, the first constituting the severest level of disability and the third the least severe. It was also recommended that the applicant continue inpatient treatment in a specialist medical facility.
RELEVANT LEGAL FRAMEWORK
30. Article 154-1 of the Code of Criminal Procedure (as in force at the material time) governing the procedure for applying the measure of bail can be found in Koval v. Ukraine, no. 65550/01, § 60, 19 October 2006.
31. Section 10(5) of the 1992 Bar Act (as in force at the material time) provided that criminal charges against a practising lawyer could only be brought by the Prosecutor General, the Deputy Prosecutor General, the Crimea Prosecutor, the regional prosecutor or the Kyiv City prosecutor.
32. Section 1 of the 1994 Compensation Act provides that a citizen is entitled to compensation for damage caused, inter alia, as a result of being unlawfully charged, arrested and placed and held in custody.
THE LAW
I. ALLEGED VIOLATION OF ARTICLEs 3 and 13 OF THE CONVENTION
33. The applicant complained that he had not had access to adequate medical treatment while in detention and that he had had no effective domestic remedy in that connection. He relied on Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
34. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. Article 3 of the Convention
35. The applicant reiterated the complaints he had made in his application form, namely that he had not been provided with adequate medical treatment while in detention.
36. The Government submitted that the medical treatment provided to the applicant had been compatible with the requirements of Article 3 of the Convention.
37. The applicable general principles in respect of medical treatment while in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 112‑22, 29 November 2007), Ukhanv. Ukraine (no. 30628/02, §§ 77‑83, 18 December 2008), Petukhovv. Ukraine (no. 43374/02, §§ 91‑98, 21 October 2010) and SergeyAntonov v. Ukraine (no. 40512/13, §§ 70‑75, 22 October 2015).
38. The thrust of the applicant’s complaint in the present case concerns the lack of adequate medical treatment for his lymphoma, in particular the authorities’ failure to carry out additional medical examinations and tests to clarify the diagnosis, and to start appropriate treatment.
39. There is no dispute between the parties regarding the seriousness of the applicant’s medical condition, or that the authorities were aware of it from July 2011 onwards (see paragraph 17 above).
40. According to the available documentary evidence, the doctors changed the applicant’s diagnosis a number of times. Initially they diagnosed the applicant with a sebaceous cyst (see paragraph 17 above), then they diagnosed him with lymphoma (see paragraph 19 above), and finally they diagnosed him with non-Hodgkin lymphoma (see paragraph 21 above).
41. As they were uncertain as to the applicant’s diagnosis, they recommended additional examinations in order to clarify the diagnosis and put in place a treatment strategy. However, those examinations were performed only in July and August 2012 (see paragraphs 21-25 above).
42. The Court notes that the Government did not explain why additional examinations to clarify the applicant’s diagnosis were not performed until the summer of 2012, despite the repeated recommendations of doctors. Inthis connection, the Court draws attention to the fact that it took the authorities more than a year to clarify the applicant’s diagnosis, during which timehe was not provided with appropriate treatment and also acquired new, additional, diseases (see paragraphs 21 and 23 above).
43. Furthermore, the Court notes that the authorities acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s oncological disease (see paragraph 19 above).
44. Another issue the Court cannot overlook is the authorities’ unexplained reluctance to transfer the applicant to a specialist medical facility following the instruction of the prosecutor’s office (see paragraph 23 above). The transfer finally took place one and a half months after the applicant’s state of health had deteriorated (see paragraph 27 above). Lastly, the Court cannot overlook the fact that the applicant was recognised as having a disability after his release from the SIZO and that a recommendation was made for him to continue inpatient treatment in a specialist medical facility (see paragraph 29 above).
45. In the light of the foregoing and on the basis of the parties’ submissions, the Court finds that the medical care provided to the applicant was not appropriate to his condition and was not accompanied by a comprehensive treatment strategy. As a result of the inadequacy of the medical care provided to him, the applicant endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and his dignity was undermined.
46. There has therefore been a violation of Article 3 of the Convention in this respect.
2. Article 13 of the Convention
47. The Government disputed the applicant’s submissions and argued that there had not been a violation of Article 13 of the Convention.
48. The Court reiterates that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning the lack of medical treatment (see, among other authorities, Sergey Antonov, cited above, § 96, with further references). It sees no reason to decide otherwise in the present case.
49. The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint under Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
50. The applicant complained under Article 5 § 1 of the Convention that the initial period of his detention had been unlawful, as the proceedings against him had not been instituted in accordance with the specific procedural guarantees applicable to practising lawyers in Ukraine, and that his detention between 30 November and 3 December 2012 had been unlawful, as under the applicable provisions of the 1960 Code of Criminal Procedure, he should have been released on 30 November 2012, irrespective of whether the amount of bail had been paid.
51. Referring to Article 5 § 3 of the Convention, the applicant complained that in its decision of 30 November 2012 the District Court had failed to assess his ability to comply with the conditions for bail. He further argued that the decisions authorising his detention had not been based on relevant and sufficient reasons.
52. The relevant provisions of Article 5 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 … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial …”
A. Admissibility
53. The Government submitted that the applicant’s complaints outlined above were inadmissible. In particular, they argued that when applying bail (see paragraph 13 above), the trial court had clearly indicated in its decision that the applicant could be released only after payment of the amount of bail. Furthermore, they argued that the amount of bail had been reasonable compared to the gravity of the crime the applicant had been accused of.
54. The applicant disagreed.
1. Article 5 § 1 of the Convention
(a) As to the applicant’s detention between 27 January and 18 March 2011
55. As regards the applicant’s complaint that the initial period of his detention between 27 January and 18 March 2011 was unlawful as the proceedings against him had not been instituted in accordance with the specific procedural guarantees applicable to practising lawyers in Ukraine, the Court notes that the institution of criminal proceedings no. 02-19259 against the applicant, his arrest and his subsequent pre-trial detention within the framework of the above proceedings were found to be unlawful by the domestic court on 4 March 2011 (see paragraph 10 above).
56. The Court is mindful of the fact that the above-mentioned court decision led to the possibility for the applicant to claim damages under the Compensation Act (see paragraph 32 above), and that the applicant, as a practising lawyer, was aware of that avenue of redress. The Court, however, is not called upon to decide whether that remedy was effective and had to be exhausted by the applicant in the present case, given that the Government did not raise a non-exhaustion plea (see Mechenkov v. Russia, no. 35421/05, § 78, 7 February 2008).
57. Therefore the applicant’s complaint about unlawfulness of his detention between 27 January and 18 March 2011 under Article 5 § 1 of the Convention must be declared admissible as it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and neither is it inadmissible on any other grounds.
(b) As to the applicant’s detention between 30 November and 3 December 2012
58. As regards the applicant’s complaint that his detention between 30 November and 3 December 2012 was unlawful, as under the applicable legislation he should have been released on 30 November 2012, that is, immediately after the relevant decision of the trial court altering the measure of pre-trial detention to that of release on bail, the Court observes the following.
59. The provisions of the Code of Criminal Procedure which were applicable in the applicant’s case did not provide for the immediate release of a person once the decision altering the measure of detention on remand to release on bail was taken by a court (see paragraph 30 above). Moreover, it was clearly indicated in the decision of the trial court of 30 November 2012 that the applicant could be released on bail on condition of paying the amount of bail into the court’s bank account.
60. In the light of the foregoing, there is nothing to suggest that the applicant’s detention between 30 November and 3 December 2012 was unlawful or arbitrary. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Article 5 § 3 of the Convention
61. As regards the applicant’s complaint that in its decision of 30 November 2012 the District Court failed to assess the applicant’s ability to comply with the conditions for bail, the Court observes that the applicant made a general reference to his inability to pay the amount set and to the decision of the District Court to attach his assets in the course of the criminal proceedings against him. Furthermore, the Court notes that the amount of bail was deposited on 3 December 2012, that is, three days after the District Court’s decision, and the applicant was released from the SIZO on the same day.
62. Having regard to the foregoing and in the absence of specific arguments concerning the applicant’s inability to pay the amount of bail, the Court does not discern any appearance of a violation of Article 5 § 3. Itfollows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Otherwise as to admissibility
63. The Court further notes that the remainder of the applicant’s complaint under Article 5 § 3 of the Convention, notably that his pre-trial detention was not justified by relevant and sufficient reasons, is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Article 5 § 1 of the Convention
64. The applicant insisted that there had been violation of his rights under Article 5 § 1 of the Convention.
65. The Government did not provide any comments on the merits.
66. The Court notes that the national courts found that the applicant’s detention between 27 January and 18 March 2011 had been unlawful (see paragraph 10 above). The Court sees no reason to depart from those conclusions of the national courts.
67. There has accordingly been a violation of Article 5 § 1 of the Convention.
2. Article 5 § 3 of the Convention
68. The applicant submitted that his pre-trial detention had been unjustified and lengthy.
69. The Government contested that submission, stating that the applicant’s detention had been justified and reasonable.
70. 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.
71. 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 27 January 2011 to 3 December 2012. His pre-trial detention therefore lasted for about one year and ten months.
72. The Court further 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 7 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 at the respective stages of the proceedings.
73. Moreover, with the passage of time, the applicant’s continued detention required further justification, but the courts did not provide any further reasoning. In particular, they did not make a proper assessment of the need for the applicant’s continued detention in view of the state of his health.
74. Furthermore, throughout the applicant’s detention the domestic authorities did not consider any other alternative preventive measures (see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).
75. 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 any had been given) throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, §§ 41-42, 15 December 2016).
76. Having regard to the above, the Court finds 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, the authorities extended the applicant’s detention on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration.
77. There has accordingly been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 and ARTICLE 13 OF THE CONVENTION
78. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement and that he had not been afforded an effective remedy in this connection. He relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:
Article 6 § 1
“In the determination of… any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
79. The Government contested those arguments.
80. The period to be taken into consideration began on 27 January 2011, when the applicant was arrested. According to the material available, the proceedings against the applicant appear to still be pending (see paragraph 16 above). They have thus lasted more than nine years at two levels of jurisdiction.
A. Admissibility
81. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
82. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
83. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court found a violation in respect of issues similar to those in the present case.
84. Having examined all the material submitted to it, the Court sees no fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings against the applicant was excessive and failed to meet the “reasonable time” requirement.
85. There has accordingly been a violation of Article 6 § 1 of the Convention.
86. Furthermore, the Court finds that the applicant did not have at his disposal an effective remedy in respect of the above-mentioned complaint under Article 6 § 1 of the Convention (see Vashchenko v. Ukraine, no. 26864/03, § 59, 26 June 2008).
87. There has accordingly been a violation of Article 13 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
88. Lastly, the applicant complained under Article 5 § 4 and Article 13 of the Convention that his right to a review of the lawfulness of his detention had been breached.
89. Having regard to the facts of the case, the submissions of the parties and its findings under Article 3, Article 5 § 3, Article 6 § 1 and Article 13 of the Convention (see paragraphs 46, 49, 67, 77, 85 and 87 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 above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
90. 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
91. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage. The Government submitted that the claim was unsubstantiated and excessive.
92. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
93. The applicant claimed EUR 8,237 in respect of his legal representation before the domestic courts and the Court. Furthermore, he claimed 534.25 Ukrainian hryvnias (approximately EUR 20) for postal expenses.
94. The Government contested the applicant’s claims in respect of his legal representation. As to the claim for postal expenses, they left this issue for the Court to decide.
95. 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.
96. Regard being had to the documents in its possession and the complexity of the case, the Court awards the applicant EUR 2,000 to cover all his costs and expenses.
C. Default interest
97. 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,
1. Declaresthe complaints under Article 3, Article 5 §§ 1 and 3 (regarding unlawfulness of the applicant’s detention between 27 January and 18 March 2011, the lack of sufficient justification for, and the length of, his detention), Article 6 § 1 and Article 13 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Articles 3 and 13 of the Convention in respect of the lack of adequate medical treatment provided to the applicant while in detention and the lack of an effective remedy under domestic law for his complaint under Article 3;
3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of unlawfulness of the applicant’s detention between 27 January and 18 March 2011;
4. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the lack of sufficient justification for, and the length of, the applicant’s pre-trial detention;
5. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention in respect of the unreasonable length of the proceedings in the applicant’s case and the lack of an effective remedy under domestic law for his complaint under Article 6 § 1;
6. Holdsthat there is no need to examine separately the complaint under Article 5 § 4 and Article 13 of the Convention concerning the alleged breach of the applicant’s right to a review of the lawfulness of his detention;
7. Holds
(a) that the respondent State is to pay the applicant, 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 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
8. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Arnfinn Bårdsen
Deputy Registrar President
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