CASE OF TITARENKO v. UKRAINE
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);Non-pecuniary damage - award
André Potocki;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1962 and lives in Debaltseve. 6. On 12 April 1996 the applicant (a former police officer) and a Mr B. were placed on the wanted list as suspects in the robbery of a certain Mrs A. 7. On 24 June 1996 five police officers arrived at a summer house outside the town of Svetlodarsk, in the Donetsk region, as it was believed that the applicant and Mr B. were hiding there. When the officers approached the house and identified themselves, they were shot at from a Kalashnikov assault rifle and hand grenades were thrown at them. As a result one police officer was killed and two sustained severe injuries. The perpetrators escaped. 8. On the same day the Artemiskiy District Prosecutor’s Office (hereafter “the Prosecutor’s Office”) instituted criminal proceedings for murder and attempted murder of police officers on duty. 9. On 3 July 1996 the Prosecutor’s Office charged the applicant in his absence with the above offences and ordered his arrest. On the following day he was placed on the list of wanted persons. 10. On 10 July 1996 the criminal proceedings against the applicant were suspended because of failure to establish the whereabouts of the applicant and his co-accused. 11. On 9 March 2000 the applicant was arrested in Greece under an international arrest warrant. 12. On 9 August 2000 he was extradited from Greece to Ukraine and the criminal proceedings against him were resumed. On the same day the Donetsk Regional Bar appointed lawyer R. to represent the applicant in the above proceedings from 11 August 2000. The applicant’s relatives signed a contract with lawyer R. for the applicant’s representation. 13. The applicant alleged that following his arrival in Ukraine he had been placed in police custody and beaten for three days until he incriminated himself. According to the domestic court’s findings in the judgment against the applicant (see paragraph 29 below), on 10 August 2000 police officers I.S. and D.S. visited the applicant in the police detention unit for a confidential talk (доверительная беседа) about unrelated matters, namely arms trafficking in the region. The officers did not ask him about the police officer’s murder, but the applicant himself told them that on the day of the murder he had been on the first floor of the summer house in question and that, when escaping, he had thrown a hand grenade, which had not exploded. Two other police officers, N. and A., also visited the applicant in connection with yet another unrelated crime. They stated that he had proclaimed his innocence but refused to make any official statement in the absence of his lawyer. All four officers denied any coercion towards the applicant. 14. On 11 August 2000 the applicant was presented with charges, amended to take account of evidence collected since June 1996. After being formally charged the applicant was questioned in the presence of his lawyer R. He confirmed his earlier confession statements. He did not complain of any ill-treatment. According to the applicant, after this interview he was not allowed to see his lawyer for fifteen days. According to the Government, on 29 August 2000 the applicant was questioned in the absence of his lawyer as he had expressed a wish to be questioned without a lawyer; on other days during this period the lawyer R. did not ask to see the applicant. 15. On 1 and 5 September 2000 an ambulance was called for the applicant in connection with renal colic. 16. On 4 September 2000 the applicant’s brother asked the investigator to allow lawyer K. to act as defence counsel in the case, as lawyer R. was busy in other proceedings. This request was allowed. 17. On 6 September 2000 the applicant, assisted by lawyer K., participated in an on-site reconstruction of the events of the crime. 18. On 8 September 2000 lawyer R. asked the investigator to allow him unlimited visits to the applicant during the investigation. On 11 September 2000 the investigator allowed him one visit to the applicant. On 28 September 2000 lawyer R. challenged the investigator’s decision before the Donetsk Regional Prosecutor’s Office. In October 2000 the Head of the Investigation Department of the Donetsk Regional Prosecutor’s Office allowed lawyer R. unlimited visits to the applicant. 19. On 22 September 2000 the Artemivsk District Prosecutor extended the applicant’s detention until 26 October 2000. On 14 October and 25 December 2000 the Donetsk Regional Prosecutor further extended the applicant’s detention until 26 December 2000 and 26 January 2001 respectively. On 11 January and 20 February 2001 the applicant’s detention was extended until 9 March and 9 June 2001 respectively by the General Prosecutor’s Office. 20. On 20 October 2000 the applicant’s mother complained to the General Prosecutor’s Office that the applicant had been ill-treated and that his access to his lawyer had been limited. By letter of 28 November 2000, the Donetsk Regional Prosecutor’s Office replied to this complaint. They noted, among other things, that there had been no evidence that the applicant had been ill-treated and the applicant himself denied any ill-treatment. They also noted that the applicant had been questioned in the presence of his lawyer R. on 11 August 2000 and that there had been no obstacles to communication between the applicant and his lawyer. All requests by lawyer R. for meetings with the applicant had been satisfied and the lawyer had obtained a permit to see the applicant at any time without limitation on the duration of his visits. 21. In November 2000 the applicant changed his evidence and claimed that his confessions had been extracted under duress. The applicant stated that he could not have been involved in the imputed offences to him, as he had been in Vladikavkaz (Russia) at the relevant time. The applicant alleged that, having learned from his relatives that the police were looking for him in relation to the shooting, he had decided not to return to Ukraine. 22. On 13 May 2001 the Donetsk Regional Prosecutor’s Office refused to institute criminal proceedings against the police officers for alleged ill-treatment of the applicant on the ground of lack of corpus delicti. 23. On 2 July 2001 the Prosecutor’s Office submitted to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) a bill of indictment against the applicant and his co-defendant, Mr B. They were to stand trial for the murder and attempted murder of police officers on duty and for illegal possession of firearms. 24. On 1 August 2001 a preparatory hearing was held before a judge of the Court of Appeal. Neither the applicant nor his lawyer was present. The judge considered that the case was ready for trial and decided, without giving any reasons, that the applicant was to remain in detention on remand. 25. The trial started on 19 September 2001 in the premises of the Debaltseve Local Court. During the court hearings the applicant was held in a metal “cage” in the court room. His lawyer sat in the courtroom at some distance from the “cage”. 26. On 10 January 2002 the applicant lodged an application for release. In a letter of 23 January 2002 the presiding judge informed him that this request would be examined at the next court hearing. That hearing took place on 11 April 2002, when the court examined the above request and refused to change the preventive measure imposed on the applicant on the ground that he could flee from justice or obstruct the investigation. The court took into account that the applicant was accused of serious crimes punishable by more than three years’ imprisonment, that he had no permanent residence or work on the territory of Ukraine and that he had been hiding in Greece with false documents and had been extradited from that country. 27. On 21 July 2002 the Court examined another application for release lodged by the applicant on 3 July 2002 and rejected it on the same grounds as on 11 April 2002. 28. During the trial the applicant and his mother requested family visits to the applicant on several occasions. By letters of 31 October 2001, 23 January 2002 and 5 August 2003 the Donetsk Regional Court of Appeal rejected their requests and informed them that under Article 345 of the Code of Criminal Procedure detained defendants could receive family visits only after a conviction. 29. On 6 April 2004 the Court of Appeal, composed of two professional and three lay judges (народні засідателі), found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The applicant’s conviction was based on his and Mr B.’s confession statements, given during the investigation in the presence of their lawyers, and on the statements of four police officers involved in the incident of 24 June 1996, two of whom had identified the applicant as one of the perpetrators. The trial court also took into account an airplane ticket issued in the name of the applicant, which had been found at the scene during the investigation, and the applicant’s passport, discovered in bushes near the perpetrators’ escape route. The court examined the applicant’s complaints about violation of his defence rights. It noted that the initial questioning of the applicant, his confrontation with one of the victims and the reconstruction of the scene of the crime, on which the court relied in its decision, had been conducted with the participation of the applicant’s lawyer. As to his questioning on 29 August 2000 without a lawyer, the court noted that the applicant had voluntarily agreed to make statements without his lawyer and had not complained on that date of any ill-treatment. The court also examined the applicant’s complaints of ill-treatment by the police, who had allegedly forced him to incriminate himself during the first days of the investigation. The court found that on the day after his arrest he had been informally questioned by four police officers on matters unrelated to his criminal case and had confessed to being at the scene of the crime without having been asked about this event (see also paragraph 14 above). The court noted that the applicant’s allegations had not been supported by any evidence and that the applicant did not complain about any ill-treatment in the presence of his lawyer on 11 August 2000. The court further noted that the prosecution had investigated the applicant’s complaints and refused to institute criminal proceedings against the police officers. The court agreed with the prosecutor’s decision and dismissed the applicant’s complaints. 30. On 6 April 2004 the court also allowed the applicant to see his parents. 31. The applicant appealed to the Supreme Court. In his appeal, among other things, the applicant challenged the bench that had delivered the judgment of 6 April 2004, alleging that, whereas section 65 of the Judiciary Act provided that lay judges were to be appointed from lists approved by the municipal authorities, the names of two out of the three lay judges who had participated in his trial did not appear in the list approved by the Debaltseve Town Council on 27 November 2003. 32. On 16 December 2004 the Supreme Court upheld the judgment of 6 April 2004. It noted, in particular, that the bench of the appellate court had been composed in compliance with law. 33. On his arrival from Greece on 9 March 2000 the applicant was placed in the Donetsk City Temporary Detention Centre (“the ITT”). He was subsequently detained in a number of other detention facilities, including the Donetsk Pre-trial Detention Centre (“the SIZO”) and the Debaltseve ITT. 34. In July 2002 the Court of Appeal held several hearings in his case in the town of Debaltseve. In consequence, he was transferred to the Debaltseve ITT, where he was held from 8 to 15 July 2002. During the court hearings, the applicant complained about the conditions of his detention. He alleged that the food supply was inadequate and that he had not been allowed to receive parcels from his relatives. He further complained that, in spite of the summer heat, the cell had no water supply, which rendered the sanitary conditions unbearable. 35. On 23 August 2002 the Donetsk Regional Prosecutor’s Office instructed the Debaltseve Town Prosecutor’s Office to investigate the applicant’s allegations that the applicant was not provided with food and not allowed parcels from his relatives during his stay in the Debaltseve ITT in the period May to June 2001. 36. On 27 August 2002 the Debaltseve Town Prosecutor’s Office issued a decision refusing to institute criminal proceedings against the officers of the Debaltseve ITT, for lack of evidence of a crime. The prosecution established that during his stay in the Debaltseve ITT the applicant had received three parcels from his mother and she had never made any complaint. The prosecution further referred to statements by ITT wardens, who alleged that the applicant had been provided with food regularly. The prosecution further noted that during the applicant’s stay in the ITT the Debaltseve Prosecutor’s Office carried out several inspections of the conditions and lawfulness of the applicant’s detention, following his complaints. 37. Whilst in the Donetsk SIZO the applicant was held in a cell designated for (former) law-enforcement officers. The applicant states that on 25 September 2002, he was transferred to a medical wing in a cell assigned to inmates infected with tuberculosis. He was then allegedly transferred to a cell with another inmate, who threatened him with violence on the ground that he was a former police officer. 38. From October 2002 the applicant filed a number of complaints with the Prosecutor’s Office concerning the above incident in the Donetsk SIZO and the conditions of his detention in the Debaltseve ITT; he also alleged that this detention was unlawful. 39. On 7 October 2002 the Deputy Prosecutor of the town of Debaltseve issued a certificate (довідка) concerning the hygiene norms in the Debaltseve ITT. The certificate stated that the representatives of the Prosecutor’s Office and the specialists of the Sanitary-Epidemiological Station had inspected the conditions of detention in the above ITT. They found that the ITT had six cells, equipped with sanitary facilities and a water supply. The toilets and wash basins were in order. Drinking water was supplied as per the schedule. The ITT had a shower which was also in order. The cells were equipped with bunk beds, a table and benches. The certificate further noted that the ITT had a sufficient quantity of mattresses and bed linen, but the inmates used their own bedding. The inmates were provided with three hot meals per day. It also noted that the applicant had complained about the conditions of his detention in the ITT during his stay there in 2001. During the prosecutor’s regular (every ten days) inspections of the conditions of detention in the ITT in 2002 the applicant had made no complaints to him. In conclusion, it was noted that no violation of the relevant legislation had been established. 40. In a letter of 22 October 2002 the Prosecutor’s Office stated that in September 2002 the applicant had been examined by a prison doctor and was diagnosed as suffering from chronic gastritis. The doctor recommended that he be moved to the medical wing. There was no indication that the applicant was ever placed in a cell with inmates suffering from tuberculosis. The medical wing did not have a cell designated for (former) lawenforcement officers. However, immediately after his request, the applicant was removed from the cell he was sharing with the person who had allegedly threatened him. 41. On 16 October 1996 the Ministry of the Interior, the Ministry of Justice, the General Prosecutor’s Office, the Supreme Court and the Security Service, by a joint order, approved the Instruction on the Procedure for Escorting Accused or Convicted Persons) to and from, or in, Courts at the Judicial Authorities’ Request. The relevant provisions of the Instruction read: “7. ...The area in the courtroom where defendants are held shall be equipped with a bench and a wooden barrier of one metre in height, which shall be fastened to the floor. In courtrooms located on the ground floor the windows shall be barred. In each court building, up to 50% of the courtrooms in which criminal cases are heard shall be equipped with stationary metal barriers separating the defendants from the judges’ bench and from others persons present in the room... The windows in these rooms shall be barred irrespective of the floor on which they are located.” “23. On an oral instruction by the presiding judge, the head guard shall allow the accused or convicted person to speak to his counsel, experts or public prosecutors and shall allow a doctor to examine the accused or convicted person; during such exchanges, however, the accused or convicted person shall continue to be guarded. Such talks are usually conducted in an available room designated for holding accused or convicted person during breaks in court hearings and may be conducted in any language...” 42. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case, depending on whether it is the investigation or the trial stage. 43. The relevant provisions of the Code of Criminal Procedure 1960 read: Article 162 Visiting a detainee “Visits by relatives or other persons to a detainee may be authorised by the person or institution which is dealing with the case. The duration of the visit shall be fixed from one to two hours. As a rule, visits may be authorised no more than once a month.” Article 345 Granting relatives permission to visit a convicted person “Prior to the entry into force of the judgment, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person, upon their request, permission to visit the detained convicted person.” Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005-II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 39-42, 4 March 2010). “b. Militia central holding facilities (ITT) ... 49. Despite the measures announced in the responses of the Ukrainian authorities to the recommendations made by the CPT in its two previous reports, the delegation could not identify any noticeable improvements in the conditions of detention of the ITTs visited... The Committee believes that it would be more useful to highlight the main deficiencies in the ITTs from an overall perspective, rather than to enter into an in-depth analysis of each ITT visited; indeed, the challenges facing ITT establishments are, to all intents and purposes, similar. 50. The majority of ITTs visited were overcrowded. For example, in Sebastopol ITT, up to 10 persons were being held in cells of 15 m² and in several cells there were more persons than beds. 51. In all the ITTs visited, access to natural light was obstructed by dense metal netting on the windows or jalousies and the artificial lighting was, in general, insufficient. Reading of any kind was a strain on the eyes. The ventilation was inadequate and the air in the cells visited heavy. The lack of ventilation was exacerbated by the fact that the cells tended to be fetid, detainees being provided with neither products for cleaning their cells nor the possibility of washing themselves other than in a basin of cold water. Only in Lytne ITT did all detainees have the possibility of a shower during their stay. Further, the sanitary facilities in nearly all the ITTs visited left something to be desired. A notable exception was Simferopol ITT, where the delegation noted the cells were clean and the detainees possessed basic hygiene products. In several ITTs there was an insufficient quantity of mattresses and blankets for all the detainees, while the cleanliness of those available was questionable. Further, with one or two exceptions, the ITTs visited did not possess outdoor exercise facilities. Nor was there any provision for activities; in many ITTs, detainees were not even permitted newspapers. 52. In most ITTs, the single daily meal was supplemented by food parcels from relatives. Those without relatives shared the food of others. Given the fact that the Militia are unable financially to provide sufficient food to detainees, food parcels should not be subject to undue restrictions. The CPT has already made its position clear ... as regards ready access to drinking water; it is concerned that detainees in Kyiv ITT were denied such access. 53. In the light of the unacceptable conditions referred to above, the CPT was all the more concerned to learn that a significant number of detainees were being held in ITTs for periods much longer than the 10 day legal limit. ... 57. The CPT has already welcomed the measures taken by the Ukrainian authorities in response to the immediate observation made by its delegation. Notwithstanding those measures, the Ukrainian authorities still have some way to go to fulfil their responsibility to detain persons deprived of their liberty under conditions fully consistent with human dignity. It is clear that, in order to achieve lasting improvements, the highest priority should be given to the objective of reducing overcrowding. Only then can the efforts made by the Ukrainian authorities be expected to bear fruit. However, certain steps must be taken in the interim in order to ameliorate the situation. Consequently, the CPT calls upon the Ukrainian authorities to take, without further delay, the following steps already identified in its two previous reports: - ensure that all persons detained in ITTs are: supplied with essential personal hygiene products and have the opportunity to wash every day; able to take a warm shower on arrival and at least once a week during their period of detention; given the necessary products to keep their cells clean and hygienic; authorised to receive parcels from the very outset of their detention. - ensure that detained persons, in all ITTs, are provided with reading matter (if the establishment does not have a library, detained persons should be authorised to receive newspapers or books from relatives); - review the regulations and practice concerning detainees’ contact with the outside world.” The relevant parts of the report read: “b. Militia central holding facilities (ITTs) ... 40. The follow-up visit to the ITT in Kyiv revealed certain improvements: the establishment was not overcrowded (100 detainees for 156 places); the third floor had been properly renovated and all the detainees on that floor had a bed; the ventilation system on the second floor had been improved. In addition, there were now two exercise areas. However, there were numerous allegations that access to those areas was limited to ten minutes or so. Mattresses and blankets (although dirty) were available. That said, the cell windows were still hidden by shutters and the other detention floors remained in a state of severe dilapidation (cf., inter alia, paragraph 48 of the report on the 2000 visit). 41. As regards the other ITTs visited, the CPT would stress that the best material conditions observed were in the Uzhgorod facility. The cells were well-lit, in part by natural light, clean, correctly equipped (bed, mattress, blankets, table, bench) and spacious (between 11 and 25 m²). There was, however, one important deficiency, namely the absence of an outdoor exercise yard. Elsewhere, material conditions were very mediocre. In reality, the descriptions in the previous reports still very much apply. While some efforts had been made by the authorities shortly before the CPT’s visit, such as repainting cells or ensuring that mattresses and blankets were provided (as in Zhytomyr or Odessa, for example), the cells still had no access to natural light, the artificial lighting was often of poor quality and the ventilation deficient. The toilets in the cells were not properly partitioned off, if at all, and the sinks were in a bad state of repair. As in the past, access to hygiene products was dependent on parcels received by the detained persons and there were no arrangements enabling them to maintain adequate personal hygiene. The situation was variable where food was concerned: in some ITTs, three daily meals were provided, whereas in others there were two or even just one per day. ... 43. In addition, there was rampant overcrowding: for example, an analysis of the detention registers revealed that the Mukachevo ITT, with an official capacity of 28 places, regularly held up to 42 persons, and the Khust facility, with a capacity of 22 places, held up to 35. ... 45. ...it further recommends that steps be taken to ensure: - without delay that, in those ITTs already possessing outdoor exercise areas, detained persons actually have access to them for one hour each day; - without delay that, in all ITTs, detained persons are supplied with a full set of clean bedding, which is cleaned at regular intervals; - without delay that, in all ITTs, detained persons are provided with essential personal hygiene products and are able to wash every day (this includes a hot shower once a week, throughout their detention); - without delay that, in all ITTs, detained persons are given food at appropriate times; - the proper and progressive partitioning off of toilets in cells; - that detained persons, in all ITTs, have access to reading matter; - that the official occupancy level of ITT facilities is not exceeded and that efforts are made gradually to reduce them; the objective should be to offer living space of at least 4 m² per person.”