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FIFTH
SECTION
CASE OF ZNAYKIN v. UKRAINE
(Application
no. 37538/05)
JUDGMENT
STRASBOURG
7 October
2010
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 Znaykin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37538/05) 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 Grigoriy Znaykin (“the
applicant”), on 28 September 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the conditions of his
detention had been unsatisfactory and that his detention from 27 June
2005 to the date of his conviction by the first-instance court
had been unlawful.
- On
17 March 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975. Before his imprisonment he had been
living in Staryy Krym.
A. Criminal Proceedings against the applicant and
related issues
- On
26 February 2005 the Prosecutor’s Office of the Autonomous
Republic of Crimea (“the Prosecutor’s Office”)
instituted criminal proceedings into allegations that the applicant,
a police officer at the time, had abused his power. The applicant was
suspected of having abused his police power which resulted, inter
alia, in the ill-treatment of suspects he had been working with
and unlawful searches of their homes.
- On
28 February 2005 the applicant was arrested on this account.
- On
3 March 2005 the applicant was brought before the Tsentralnyy
District Court of Simferopol (“the District Court”) which
decided to extend the applicant’s detention until 10 March
2005. The District Court also ordered the Prosecutor’s Office
to find more information on the applicant’s personality, his
state of health, his role in the alleged crime, so that it could
reach a reasoned decision regarding the applicant’s further
detention.
- On
10 March 2005 the District Court extended the applicant’s
detention for two months, stating that he had been charged with a
serious crime and, if at liberty, could impede the investigation. The
District Court rejected the applicant’s contention that, for
health reasons, he could not be detained in custody, noting that the
evidence presented in that respect had been unreliable.
- On
22 March 2005, following an appeal by the applicant, the Court of
Appeal of the Autonomous Republic of Crimea (“the Court of
Appeal”) upheld the decision of 10 March 2005.
- On
26 April 2005, following a submission by the Prosecutor’s
Office, the District Court extended the applicant’s detention
until 28 June 2005, stating that he had been charged with a serious
crime and, if at liberty, could impede the investigation.
- On
17 May 2005, having considered an appeal by the applicant against the
decision of 26 April 2005, the Court of Appeal rejected it as
unsubstantiated. It stated, however, that, under the applicable
rules, the applicant’s detention could only be extended to 26
June 2005 and therefore amended the decision of 26 April 2005
accordingly.
- On
24 June 2005 the Prosecutor’s Office referred the case file to
the Chairman of the Court of Appeal to determine which trial court
would consider the applicant’s case.
- On
4 July 2005 the Chairman of the Court of Appeal referred the case to
the Feodosiya Town Court (“the Town Court”) for trial.
- On
10 August 2005 the Town Court committed the applicant for trial. It
also upheld the preventive measure applied to the applicant
(detention in custody). No time-limit or reasons for the applicant’s
further detention were offered in that decision.
- On
4 January 2006, having examined the case, the Town Court found the
applicant guilty of abuse of power and sentenced him to five years
and six months’ imprisonment. The court also prohibited the
applicant from occupying law-enforcement posts for three years and
ordered his property to be confiscated. The applicant appealed.
- On
20 January 2006 the local newspaper “T.” published an
interview with the Prosecutor of the Autonomous Republic of Crimea,
Mr Sh. The interview was entitled “The criminals will be put in
prison”. In the interview Mr Sh. stated, in particular, the
following:
“... The criminal proceedings have been instituted
against three police officers of the Kirovskyy Police Department —
Mr Znaykin, Mr M., and Mr V. — who, in 2004, unlawfully
arrested three citizens, beat them up, and then unlawfully carried
out searches of their homes. ...”
- On
4 February 2006 the governor of the Feodosiya Temporary Detention
Centre (“the Feodosiya ITT”) allegedly refused the
applicant a family visit even though permission had been obtained
from the court. According to the applicant, the duration of the other
family visits, granted in that detention centre, was shorter than
that provided by the domestic law.
- On
25 May 2006 the Court of Appeal upheld the applicant’s
conviction, following which the judgment of 4 January 2006 came into
effect. The applicant appealed in cassation but did not complain that
he had not been provided with sufficient time and facilities to
prepare his defence or that his right to presumption of innocence had
been impaired.
- On
29 May 2006 the applicant complained to the General Prosecutor’s
Office, alleging that his right to presumption of innocence had been
breached as a result of the publication of Mr Sh.’s interview
by the local newspaper on 20 January 2006.
- On
24 July 2006 the Prosecutor’s Office, to which the complaint
had apparently been redirected, replied to the applicant that there
had been no violation of presumption of innocence on account of the
above-mentioned interview.
- On
30 November 2006 the Supreme Court rejected the applicant’s
cassation appeal as unsubstantiated.
B. The conditions of the applicant’s detention
- Between
22 March 2005 and 9 July 2006 the applicant was held in the
Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”)
and the Feodosiya ITT.
1. The applicant’s submissions on the facts
- The
applicant submitted that he had been held with nine or ten other
detainees in cell no. 76 at the Simferopol SIZO, which measured 10.8
sq. m. The cell was equipped with nine bunks stacked in three tiers.
The toilet was not separated from the living area and provided no
privacy. Because the table in the cell was very small, the detainees
had to take it in turns to eat. The applicant had to wash his clothes
in the cell, because the laundry service only accepted bed sheets.
Daily exercise sessions outside the cell lasted only thirty or forty
minutes and were organised in the SIZO’s roof-covered yards.
Those submissions were confirmed by the signatures of the other nine
detainees held with the applicant. Despite the fact that the
applicant suffered from hypertension, he was not provided with
sufficient medical care.
- The applicant complained to the officials of the
Simferopol SIZO about the conditions of his detention, but to no
avail.
- In
the Feodosiya ITT the applicant was held together with another
detainee in a cell which measured 4 sq. m, of which the toilet and
the washstand occupied 1.5 sq. m; there were no windows, no table and
no chairs, and the ventilation was unsatisfactory. Subsequently, the
applicant was moved to a cell measuring 4.8 sq. m, which he shared
with five or six other detainees. The toilet was not separated from
the living area, which therefore denied any privacy. There was no
table and no chair. In support of his submissions the applicant
provided statements from eight co-detainees.
- On 8 February 2006 the applicant unsuccessfully
complained to the prosecutor supervising detention facilities,
alleging that the conditions of his detention in the Feodosiya ITT
were unsatisfactory.
2. The Government’s submissions on the facts
- As
regards the Simferopol SIZO, the Government submitted that the
applicant had been held in cell no. 156, which measured 29.2 sq.
m and in which there were between nine and eleven detainees.
Subsequently, he had been held in cell no. 76 which measured 12.3 sq.
m and in which there were a total of eight detainees.
- The
sanitary units were separated from the other area of the cells; the
furniture was appropriate; the laundry operated smoothly; the
applicant was offered one-hour periods of daily outdoor exercise. As
to the medical care, the applicant was duly inspected upon his
arrival at that facility. According to a written statement by the
head of the Simferopol SIZO, the applicant made no complaints to the
medical staff on account of his health.
- As
to the Feodosiya ITT, the Government submitted that the applicant was
held in the following cells:
cell no. 3,
measuring 4.74 sq. m, in which the applicant was held with one
detainee;
cell no. 5,
measuring 5.88 sq. m, in which there were a total of four detainees;
cell no. 2.7
measuring 5.28 sq. m, in which there were between five and eight
detainees.
- Despite
the fact that there were no windows in the cells, the lighting and
ventilation systems were operating properly. The cells were equipped
with furniture.
II. RELEVANT DOMESTIC LAW
A. Constitution of 28 June 1996
- The
relevant provisions of the Constitution read as follows:
Article 29
“Every person has the right to freedom and
personal inviolability.
No one shall be arrested or held in custody other than
pursuant to a reasoned court decision and only on grounds and in
accordance with a procedure established by law. ...”
Article 62
“A person is presumed innocent of committing a
crime and shall not be subjected to criminal punishment until his or
her guilt is proved through legal procedure and established by a
court verdict of guilty. ...”
B. Civil Code of 16 January 2003
- Article
297 § 3 of the Code provides that a physical person is
entitled to lodge a claim with a court seeking protection of his or
her dignity and honour.
C. The Pre Trial Detention Act of 30 June
1993
- Section
12 of the Act provides, inter alia, that the officials of a
pre trial detention facility may allow family visits to a
detainee (in principle, once per month for a duration of one to four
hours) only upon the written permission of a body of inquiry, an
investigator, or a court which is dealing with the case at the
relevant time.
- The
other relevant provisions of this Act can be found in the judgment of
12 October 2006 in the case of Dvoynykh v. Ukraine
(no. 72277/01, §§ 31-37).
D. Code of Criminal Procedure of 28 December 1960
- The
relevant provisions of the Code read as follows:
Article 156: Periods of detention during
investigation
“... The period of detention during a pre-trial
investigation shall expire on the day the court receives the case
file. ...”
Article 241: Terms of committal proceedings
“A committal hearing shall be held within ten days
or, in complex cases, thirty days of receipt of the case file by the
court.”
III. RELEVANT INTERNATIONAL MATERIAL
- The
relevant international material is summarised in the judgment 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 physical conditions of his detention in
the Feodosiya ITT and the Simferopol SIZO had been inadequate. In
addition, the applicant complained that he had not been offered
appropriate medical care when detained in the Simferopol SIZO. He
relied on 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
1. The parties’ submissions
- The
Government maintained that the applicant had not exhausted domestic
remedies in respect of those complaints because he had failed to
properly raise those issues before the prosecutor’s office and
the courts. As to the issue of medical care in the Simferopol SIZO,
the Government, referring to the written statement of the head of
that facility, contended that the applicant had not even applied to
the medical staff for any assistance. In their view, that complaint
was manifestly ill-founded.
- The
applicant disagreed.
2. The Court’s assessment
- As
to the applicant’s complaint that he had not been provided with
appropriate medical care in the Simferopol SIZO, the Court, having
examined the material in the case file, notes that it does not appear
that the applicant ever complained to the medical staff of that
detention facility asking for medical assistance. The applicant’s
assertion that the medical care was inappropriate is not supported by
any factual information. The Court therefore rejects this complaint
as manifestly ill-founded pursuant to Article 35 §§ 3
and 4 of the Convention.
- As
to the Government’s plea of non-exhaustion in respect of the
physical conditions of detention, the Court notes that, on a number
of occasions, it has rejected similar objections when it has found
that such complaints pointed to problems of a structural nature in
the domestic prison system (see, for example, Kalashnikov v.
Russia (dec.), no. 47095/99, 18 September 2001, Melnik,
cited above, §§ 69-71; Koktysh v. Ukraine,
no. 43707/07, § 86, 10 December 2009).
- In
the present case, the Court considers that the matters raised by the
applicant under this head are also of a structural nature. It
observes that the authorities must have been sufficiently aware of
the applicant’s situation especially given the fact that he
raised those issues before them (see paragraphs 25 and 27).
Accordingly, the Court cannot reproach the applicant for having
failed to use the domestic remedies suggested by the Government and
dismisses their objection to this effect.
- The
Court further notes that this part of application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant, referring to his account of the facts, insisted that the
physical conditions of his detention in the Simferopol SIZO and the
Feodosiya ITT had been unsatisfactory.
- The
Government maintained that the physical conditions of the applicant’s
detention in those facilities had been adequate. They relied on their
account of the facts.
- 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, among other authorities, Ireland v. the
United Kingdom, 18 January 1978, § 162, Series A no. 25).
Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, the Court will have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it has
adversely affected his or her personality in a manner incompatible
with Article 3. Even the absence of such a purpose cannot
conclusively rule out a finding of a violation of this provision (see
Peers v. Greece, no. 28524/95, §§ 67-68 and 74,
ECHR 2001-III, and Valašinas v. Lithuania, no.
44558/98, § 101, ECHR 2001-VIII).
- The Court has consistently stressed that the suffering
and humiliation involved 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 Kalashnikov v. Russia, no. 47095/99, §
95, ECHR 2002 VI).
- In
the present case, the parties submitted various figures as to the
personal space available to the applicant when detained in the
Simferopol SIZO and the Feodosiya ITT. The figures submitted by the
applicant suggest that in the Simferopol SIZO the personal space per
detainee ranged from 0.98 sq. m to 1.08 sq. m, and in the Feodosiya
ITT it ranged from 0.69 sq. m to 2 sq. m. According to the
Government, in the Simferopol SIZO the personal space per detainee
ranged from 1.54 sq. m to 3.24 sq. m, and in the Feodosiya ITT it
ranged from 0.66 sq. m to 2.37 sq. m.
- The
Court does not need to resolve this disagreement between the parties.
Having regard to its established case-law on this issue 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 Kalashnikov, cited above, § 97,
and Melnik, cited above, § 47), the Court considers that
in any event the submissions of both parties show that the applicant
was held in overcrowded conditions, which in itself discloses a
serious issue under Article 3 of the Convention.
- The
Court further notes that, even assuming the applicant was allowed a
maximum of one-hour daily outdoor exercises, as contended by the
Government, for the rest of the time the applicant was as a rule
confined to his cell and was not allowed any other out-of-cell
activity. In the Court’s opinion that factor adds to the
problem of the insufficient cell space (see Karalevičius v.
Lithuania, no. 53254/99, § 36, 7 April 2005, and Khudoyorov
v. Russia, no. 6847/02, § 105, ECHR 2005-...
(extracts)).
- The
Court also notes that the Government failed to refute the applicant’s
assertion that in certain cells the toilets were not separated from
the other area in the cell which meant that the applicant had no
privacy when using it. Likewise, there is no evidence in support of
the Government’s assertion that the applicant’s cells
were equipped with necessary furniture and that the ventilation and
lighting systems operated properly. In these circumstances the Court
is inclined to give weight to the applicant’s submissions on
these matters which, moreover, have been confirmed by his inmates
(see Ahmet Özkan and Others v. Turkey, no. 21689/93,
§ 426, 6 April 2004). The Court further notes that the issues
concerning lack of access to daylight and fresh air with respect to
the Feodosiya ITT are even more aggravated by the fact that the cells
in that facility had no windows, as admitted by the Government.
- The
foregoing considerations are sufficient for the Court to conclude
that the physical conditions of the applicant’s detention in
the Simferopol SIZO and the Feodosiya ITT, which lasted for more than
one year, three and a half 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 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 of the Convention, which reads in as
much as relevant 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
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant contended that his detention had been authorised by the
court order only until 26 June 2005. As from 27 June 2005 and up to
his conviction by the Town Court, that is 4 January 2006, there had
been no court decision ordering his detention.
- The
Government submitted that 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. 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 preventive measure in his respect.
2. The Court’s assessment
- 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).
- In
the present case, the Court notes that, during the period under
consideration, the applicant was detained for the purpose of bringing
him to criminal liability for the crime with which he had been
charged. Accordingly, this period of detention falls under the
sub-paragraph (c) of Article 5 § 1 of the Convention.
(a) The applicant’s detention
between 27 June and 10 August 2005
- The
Court notes that between 27 June and 10 August 2005 the applicant’s
detention was not covered by any court decision and the applicant’s
detention was justified merely by the fact that the file was being
transferred from the investigator to the court and the applicant had
been awaiting his committal for trial. The Court has previously found
a violation in similar cases against Ukraine (see Yeloyev v.
Ukraine, no. 17283/02, §§ 49-51, 6 November 2008;
Doronin, cited above, § 58; and Nikolay
Kucherenko v. Ukraine, no. 16447/04,
§§ 36-38, 19 February 2009). The Court does not
see a reason to depart from its findings in the present case.
Accordingly, there has been a violation of Article 5 § 1 as
regards the period of the applicant’s detention between 27 June
and 10 August 2005.
(b) The applicant’s detention
between 10 August 2005 and 4 January 2006
- The
Court further observes that on 10 August 2005 the Town Court, when
committing the applicant for trial, also upheld the preventive
measure in his respect (detention in custody). However, it failed to
specify the time-limit for applying such a preventive measure.
Moreover, it did not even give any reasons for that decision. As
submitted by the Government, the applicant’s detention had been
covered by that court order as from the date of its adoption up to 4
January 2006.
- The
Court has already found a violation of Article 5 § 1 of the
Convention in circumstances where Ukrainian courts extended detention
for an indefinite period of time and without any particular grounds
(see Yeloyev v. Ukraine, cited above, §§ 54-55, and
Doronin, cited above, § 59). The Court does not see a
reason to reach a different conclusion in the present case.
Accordingly, there has been a violation of Article 5 § 1
of the Convention with respect to the period between 10 August 2005
and 4 January 2006.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF
THE CONVENTION
- The
applicant complained that his right to presumption of innocence had
been violated by the interview of the Prosecutor of the Autonomous
Republic of Crimea which was published in the local press on 20
January 2006. He relied on Article 6 § 2 of the
Convention, which reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in so far as he did not raise this issue in the
course of the criminal proceedings in his case. Nor did he lodge a
civil suit claiming a violation of his honour and dignity by the
impugned publication and seeking redress on this account. In the
latter regard, the Government referred in particular to Article 297
of the Civil Code and insisted that there had been well-established
judicial practice in this field. As examples of practical
effectiveness of the civil remedy, the Government referred to the
decisions of the domestic courts which had been analysed by this
Court in the case of Vitrenko and other v. Ukraine (no.
23510/02, decision of 16 December 2008).
- The
Government further maintained that the applicant had failed to
substantiate that there had been any detriment to his right to
presumption of innocence in the course of the criminal proceedings
against him and that therefore the applicant could not be regarded as
a victim of the violation claimed.
- The
applicant did not put forward any arguments against the Government’s
submissions.
- The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants to use first the remedies that are
normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. The existence
of the remedies must be sufficiently certain, in practice as well as
in theory, failing which they will lack the requisite accessibility
and effectiveness. Article 35 § 1 also requires that the
complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in
domestic law, but not that recourse should be had to remedies which
are inadequate or ineffective (see Akdivar and Others v. Turkey,
no. 21893/93, §§ 65-67, ECHR 1996-IV; and Aksoy
v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI).
- In
the present case, the Court notes that the applicant was not silent
with his complaint at the domestic level. In particular, he
complained to the General Prosecutor on account of inappropriate
expressions of the inferior prosecutor. However, the Court has held
on a number of occasions that a hierarchical complaint does not
constitute an effective remedy for the purpose of Article 35 § 1
of the Convention (see Horvat v. Croatia, no. 51585/99,
§ 47, ECHR 2001 VIII, and Hartman v. Czech
Republic, no. 53341/99, § 66, ECHR
2003 VIII (extracts)). Moreover, in the present case the
applicant’s complaint was re-addressed to and then considered
by the Prosecutor’s Office headed by Mr Sh., the
prosecutor whose actions the applicant had been challenging. This
remedy was therefore deprived of any safeguards for an independent
scrutiny. Accordingly, the Court finds that the applicant’s
recourse to such a remedy could not count for exhaustion purposes.
- The Court further observes that the applicant did not
raise this matter before the domestic courts, either in the course of
criminal proceedings or by means of a separate civil action. The
applicant failed to substantiate why the recourse to the judicial
remedies adduced by the Government would be ineffective in his case.
In these circumstances the Court considers that, by failing to bring
this complaint to the attention of the domestic courts, the applicant
did not comply with the rule of exhausting domestic remedies (see,
also, Koval v. Ukraine (dec.), no. 65550/01, 10 December 2002,
Nevmerzhitsky v. Ukraine (dec.), no. 54825/00, 28 January 2003
and, by contrast, Shagin v. Ukraine,
no. 20437/05, §§ 71-73, 10 December 2009).
- The
Court thus does not find it necessary to deal with the Government’s
other objections and rejects this complaint in accordance with
Article 35 § 1 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 5 §§ 1 (c)
and 3 of the Convention that in its decisions of 10 March and 26
April 2005 the domestic court had failed to give reasons for his
detention, and that the overall period of his detention during the
investigation and the judicial proceedings had been excessive. He
further complained under Article 6 § 3 (b) of the
Convention that, because of the conditions of his detention, he had
not had adequate time and facilities to prepare his defence in the
criminal proceedings. The applicant also alleged that the proceedings
in his criminal case had been unfair, claiming that the domestic
courts had misinterpreted the facts and wrongly assessed the
evidence. Lastly, he complained that on 4 February 2006 the governor
of the Feodosiya ITT had refused him a family visit despite the
relevant permission of the court and that the length of some of the
family visits had been unlawfully shortened.
- 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 being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
V. 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 specify his claim.
- The
Government submitted that the claim had not been quantified and
substantiated.
- The
Court has no doubts 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 the 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 Simferopol SIZO and the Feodosiya ITT) and Article
5 § 1 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 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 national currency of the
respondent State 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 7 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
