CASE OF TYMCHENKO v. UKRAINE (European Court of Human Rights) Application no. 28253/11

The case concerns the applicant’s complaints under Article 3 of the Convention about the conditions of his detention and of his transportation between the detention facility and the court and the adequacy of his medical treatment while in detention, and his allegations under Article 5 §§ 1, 3 and 4 of the Convention that his pre-trial detention was arbitrary and unjustified and that there was no meaningful review of its lawfulness.


FIFTH SECTION
CASE OF TYMCHENKO v. UKRAINE
(Application no. 28253/11)
JUDGMENT
STRASBOURG
27 May 2021

This judgment is final but it may be subject to editorial revision.

In the case of Tymchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 28253/11) 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 Oleksandr ViktorovychTymchenko (“the applicant”), on 27 April 2011;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3 and Article 5 §§ 1, 3 and 4 of the Convention;

the parties’ observations;

Having deliberated in private on 22 April 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the applicant’s complaints under Article 3 of the Convention about the conditions of his detention and of his transportation between the detention facility and the court and the adequacy of his medical treatment while in detention, and his allegations under Article 5 §§ 1, 3 and 4 of the Convention that his pre-trial detention was arbitrary and unjustified and that there was no meaningful review of its lawfulness.

THE FACTS

2. The applicant was born in 1986 and lives in Berezan. The applicant was represented by Mr Y. Lukyanenko, a lawyer practising in Vyshneve.

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

5. On 12 August 2010 criminal proceedings were instituted against the applicant for inflicting grievous bodily harm on Mr Sh.

6. On 16 August 2010 the applicant was arrested. Subsequently, the charges were amended to hooliganism.

7. On 18 August 2010 the Berezanskiy Local Court (“the Local Court”) ordered the applicant’s detention for two months, that is, until 16 October 2010. The Local Court based its decision on the need to prevent the applicant from absconding, hindering the investigation or continuing with his criminal activity, and to ensure his compliance with the procedural decision in the case. No further details concerning those reasons were provided by the Local Court.

8. On 31 August 2010 the Kyiv Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant’s defence lawyer against the detention order and endorsed the reasons for the detention advanced by the Local Court.

9. On 15 October 2010 the Local Court examined an application submitted the previous day by the investigator to extend the applicant’s pre-trial detention for two more months. The hearing was postponed because the criminal case file was not available to the Local Court.

10. On 16 October 2010 the Local Court resumed the hearing of the previous day. It stated that there were no grounds to change the preventive measure applied previously and extended the applicant’s detention to a total of four months.

11. The applicant’s defence lawyer appealed against the decision of the Local Court, arguing, inter alia, that he had not been informed about the hearing of 16 October 2010 and that the investigator’s application for extension of the applicant’s detention had been submitted after the time-limit set forth by the law (five days before the expiry of the term of detention).

12. On 28 October 2010 the Court of Appeal upheld the decision of the first-instance court. Furthermore, it stated that non-observance by the investigator of the five-day time-limit for submitting an application for the extension of the applicant’s detention could not be a reason to reject the investigator’s application.

13. On 12 November 2010 the Local Court again extended the applicant’s detention, referring to the same reasons mentioned in its previous decisions (see paragraphs 7 and 10 above).

14. On 10 December 2010 the Local Court began the examination of the criminal case against the applicant. The Local Court maintained the applicant’s detention pending trial without providing any reasons in that regard.

15. On 23 June and 30 August 2011 the Local Court rejected requests by the applicant for release as unsubstantiated.

16. On 31 August 2011 the Local Court found the applicant guilty as charged and sentenced him to six years’ imprisonment.

17. On 21 December 2011 the Court of Appeal quashed the decision of 31 August 2011 and remitted the case to the first-instance court for a fresh examination. It also decided to replace the applicant’s detention with an obligation not to abscond and ordered his immediate release.

18. According to the information provided by the parties, as of 18 June 2013 the case was pending before the trial court.

II. Conditions of the applicant’s detention

19. The applicant was detained in the Chernigiv pre-trial detention centre (“the SIZO”) from 28 August 2010 to 17 October 2011. According to the applicant, the cells were overcrowded and were not properly ventilated. The detainees were not allowed to shower on a daily basis.

20. According to the Government, during the above-mentioned period the applicant was held in the following cells:

Cell no. Period of detention Cell size (sq. m) Number of inmates in the cell Amount of space per inmate

(sq. m)

15 28 August-19 September 2010;

9-16 October 2010;

19 October-3 November 2010;

15-19 February 2011;

28 February-1 March 2011;

19-29 May 2011;

6-15 June 2011.

24.33 12 2
35 19-29 November 2010;

19 December 2010-19 January 2011;

29 January-4 February 2011.

33 12 2.75
17 4-15 February 2011 7 4 1.75
3 1 March-5 April 2011;

15-17 June 2011;

29 June-29 August 2011.

20.32 10 2
49 1-11 May 2011 17.53 12 1.46
11 7 September-17 October 2011 18.34 8 2.29

III. Conditions of the applicant’s transportation to and from court

21. During the applicant’s transfers to and from court, he was placed in a metal wagon, which was not ventilated, and in the summer the temperature there was more than 40ºC. No meals or hygiene facilities were provided during the trip.

22. The Government asserted that during his detention the applicant had been transported by both rail and prison vans fourteen times, namely on: 28 August, 28 September, 8 October, 18 October, 18 November, 8 December and 18 December 2010; and 28 January, 28 February, 28 April, 18 May, 6 June, 16 August and 6 September 2011. Each trip had lasted about two and a half hours. Furthermore, they stated that the conditions in which the applicant had been transported had been reasonably adapted to his needs and that the weather conditions on the days of the transfers had not created a danger to the applicant’s health. The prison vans complied with domestic standards for these types of vehicles and consisted of large compartments, designed to hold ten passengers each, and small compartments for one or two passengers. The vans had no windows, but they were equipped with vents and the escorting officers could adjust the passengers’ access to fresh air. The upper and lower parts of the compartment doors were made of grating that allowed additional air circulation in the vehicle. The prison train carriages were supplied with artificial ventilation and it was also possible to open a window.

IV. Medical treatment provided to the applicant in detention

23. Since 31 May 2010, before his arrest, the applicant has been registered as having chronic hepatitis B and C.

24. According to the information provided by the Government in their observations on the admissibility and merits of the present application, the applicant’s medical file had been lost. The Government further submitted that, from the day of his arrival at the SIZO, the applicant had been regularly examined by doctors. In particular, on 29 July 2011 he had been diagnosed with chronic gastroduodenitis and cholecystitis. On 1 and 2 August 2011 the applicant had additionally been diagnosed with asthenovegetative syndrome, cervical osteochondrosis, radicular syndrome, vertebral cervicalgia, and pityriasis tinea. The relevant treatment had been prescribed for the applicant.

25. The applicant did not update the Court regarding his state of health or any medical treatment he had received after his release from detention on 21 December 2011.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26. The applicant complained that the conditions of his detention in the SIZO, the quality of medical care afforded to him while in detention and the conditions of his transportation between the detention facility and the court had been incompatible with the requirements of Article 3 of the Convention, which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. Medical treatment of the applicant

27. The Government submitted that the applicant had been provided with the relevant medical care while in detention.

28. The applicant complained that the treatment he had received while in detention had not been relevant to his condition (hepatitis C). He submitted that he had been seen by the SIZO therapist on a number of occasions and that that type of medical care, in his view, had not contributed to his recovery. Without providing any details, the applicant further alleged that it had been recommended that he undergo a comprehensive medical examination in a specialised medical institution, but that no such examination been conducted.

29. The Court notes that the parties provided little information and few documents regarding the applicant’s state of health at the time of his placement in detention or the treatment that was recommended to him in connection with his condition. However, there is no dispute between the parties regarding the chronic nature of the applicant’s medical condition (see paragraph 23 above).

30. The Court notes that the applicant’s complaint of inadequate medical assistance is limited to general statements that he did not undergo a comprehensive medical examination and that he was provided only with occasional and symptomatic treatment (see paragraph 28 above). Neither allegation is sufficientper se for the Court to reach the conclusion that Article 3 of the Convention has been breached. In particular, no evidence has been provided that the applicant required a particular kind of examination and that the authorities refused to take the necessary action in this regard, or that his state of health considerably deteriorated during his time in detention (see, by contrast, Logvinenko v. Ukraine, no. 13448/07, §§ 68-69, 14 October 2010, and Barilo v. Ukraine, no. 9607/06, §§ 69-71, 16 May 2013).

31. The Court observes that the applicant did not deny that he had received some medication and that he had undergone a number of examinations while in detention. It further notes that the applicant has not updated the Court about his state of health since his release from detention in December 2011.

32. In the absence of any concrete facts and details in support of the applicant’s allegations, the Court finds that he has not sufficiently substantiated his complaints under Article 3 of the Convention as to the alleged inadequacy of the medical assistance provided in the prison (see, mutatis mutandis, Ustyantsev v. Ukraine, no. 3299/05, §§ 63-65, 12 January 2012).

33. 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. Otherwise as to admissibility

34. The Court notes that the applicant’s complaints under Article 3 of the Convention concerning the conditions of his detention in the SIZO and the conditions of his transportation between the detention facility and the court 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. Conditions of the applicant’s detention

35. The applicant reiterated the complaints that he had outlined in his application form, namely as regards the overcrowding in the cells and the lack of access to hygiene facilities, natural light, ventilation and daily walks.

36. Referring to the information indicated in paragraph 20 above, the Government submitted that the applicant had not substantiated his complaint.

37. 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).

38. On the basis of the parties’ submissions concerning the conditions of the applicant’s detention in the SIZO (see paragraphs 19 and 20 above), the Court concludes that, for most of the time during his detention, the applicant had at his disposal between 1.46 and 2.75 sq. m of personal space.

39. In the light of the principles set out in Muršić,where the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation, it is considered to be so severely restricted that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government, who may, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see Muršić, cited above, § 137).

40. The Court observes in this connection that the Government did not demonstrate the existence of factors that could adequately compensate for the scarce allocation of the applicant’s personal space.

41. There has accordingly been a violation of Article 3 of the Convention as regards the conditions of the applicant’s detention in the SIZO.

2. Conditions of the applicant’s transportation to and from court

42. The applicant maintained his complaints regarding the poor conditions in which he had been transported to and from court.

43. The Government disagreed and stressed that the applicant’s complaint was unsubstantiated.

44. The Court notes that the parties do not dispute that the applicant was transported between the SIZO and the court on the dates and in the conditions mentioned in paragraph 22 above. It further observes, on the basis of the material on file and the parties’ submissions, that the conditions complained of appear to have been similar to those which have been sharply criticised by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during its visits to Ukraine (see Koktysh v. Ukraine, no. 43707/07, §§ 39-42, 10 December 2009). Similar factual submissions also gave rise to findings of a violation of Article 3 in the Court’s judgments in Yakovenko v. Ukraine (no. 15825/06, §§ 105-13, 25 October 2007) and Andrey Yakovenkov. Ukraine (no. 63727/11, §§ 100-03, 13 March 2014).

45. In the light of the foregoing, the Court does not see any reason to take a different approach in the present case and considers that the conditions of the applicant’s transportation between the detention facility and the court were in breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

46. The applicant complained that he had been deprived of his liberty in violation of the procedural legislation and that his pre-trial detention had been unjustified and lengthy. He relied on Article 5 §§ 1 and 3 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;

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

47. The Government submitted that the applicant’s pre-trial detention had been in compliance with Article 5 § 1.

48. The applicant stated that the investigator had submitted the application for extension of the applicant’s detention two days before the expiry of the previous detention period, whereas domestic law required such an application to be submitted five days before the expiry of the term of detention.

49. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is first and foremost for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports of Judgments and Decisions 1996‑III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article 5 § 1 (see Benham, cited above, §§ 42-47, and Jėčius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX).

50. In the present case the Local Court extended the applicant’s detention on 16 October 2010, that is, on the day of expiry of the previous detention period. The decision was adopted by a competent court on an application by the investigator as required by the domestic law. The applicant, for his part, did not indicate whether there had been any consequences resulting from the delay in ordering the extension. The Court considers that the alleged procedural shortcoming in question, namely the short delay in the submission and examination of the investigator’s application, was of such a formal and minor nature that it did not in any way affect the lawfulness of the detention period under examination (see, for example, Sefilyan v. Armenia, no. 22491/08, §§ 68-70, 2 October 2012).

51. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

52. The Court notes that the applicant’s complaint under Article 5 § 3 of the Convention regarding the justification and length of the applicant’s pre-trial detention is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

53. The applicant submitted that his pre-trial detention had been unjustified and lengthy.

54. The Government contested that complaint, stating that the applicant’s detention had been justified and reasonable.

55. 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).

56. 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 16 August 2010 until 31 August 2011. His pre-trial detention therefore lasted one year and fifteen days.

57. 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 conviction, with the exception of the decision of 10 December 2010, which contained no grounds whatsoever and which remained the only judicial order justifying the applicant’s detention pending trial (see paragraph 14 above). 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 court had made an appropriate assessment of facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stages of the proceedings.

58. 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 indeed any were 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).

59. 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, the authorities extended the applicant’s detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify it.

60. There has accordingly been a violation of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

61. Lastly, the applicant complained under Article 5 § 4 of the Convention thathis right to a review of the lawfulness of his detention had been breached.

62. Having regard to the facts of the case, the submissions of the parties and its findings under Article 3 and Article 5 § 3 of the Convention (see paragraphs 41, 45 and 60 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 complaint mentioned above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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.”

64. The applicant claimed 1,000,000 Ukrainian hryvnias (approximately 94,000 euros (EUR)) in respect of non-pecuniary damage. The Government argued that that claim was unsubstantiated.

65. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,200 in respect of non-pecuniary damage, plus any tax that may be chargeable.

66. The applicant did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head.

67. 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. Declares the complaints under Article 3 and Article 5 § 3 of the Convention regarding the conditions of the applicant’s detention in the Chernigiv SIZO from 28 August 2010 to 17 October 2011, his transportation between the detention facility and the court and the lack of relevant and sufficient reasons for his pre-trial detention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention regarding the conditions of the applicant’s detention in the Chernigiv SIZO from 28 August 2010 to 17 October 2011;

3. Holds that there has been a violation of Article 3 of the Convention regarding the conditions of the applicant’s transportation between the detention facility and the court;

4. Holds that there has been a violation of Article 5 § 3 of the Convention;

5. Holdsthat it is not necessary to examine the admissibility and merits of the applicant’s complaint under Article 5 § 4 of the Convention regarding the courts’ failure to carry out a proper examination of his applications for release;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 4,200 (four thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                          Stéphanie Mourou-Vikström
DeputyRegistrar                                                   President

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