CASE OF SOSNOVSKIY v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
André Potocki;Ganna Yudkivska;Síofra O’Leary
5. The applicant was born in 1972 and lives in Kerch. 6. At the material time the applicant worked as an investigation officer in the environmental protection prosecutor’s office (природоохоронна прокуратура). 7. On 4 October 2005 S. complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (“the ARC”) (прокуратура Автономної республіки Крим) that the applicant and U., a prosecutor’s assistant, had extorted 5,000 United States dollars (USD) from him for the purpose of carrying on a fishing business. Later K. and R. lodged similar complaints. 8. On 7 October 2005 at around 3 p.m. the applicant was arrested at his workplace after receiving 2,000 USD from S., and 200 USD and 500 Ukrainian hryvnias (UAH) from R. The applicant’s office was searched and 2,000 USD were found in one of the books on his table. The applicant’s meetings with R. and S. had been taped. On the same day criminal proceedings were instituted against the applicant and U. for bribe-taking. 9. On 10 October 2005 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) authorised the applicant’s pre-trial detention. The court held that the applicant was accused of committing a serious crime and might escape, or hinder the investigation, or continue his criminal activity. The applicant appealed. 10. On 18 October 2005 the applicant complained to the Kerch Local Court that his arrest on 7 October 2005 had been unlawful since there had been no grounds to arrest him. The court forwarded this complaint to the Kerch Prosecutor’s Office, noting that the court was not competent to consider such complaints while the case was under investigation. The Kerch Prosecutor’s Office transferred the applicant’s complaint to the Prosecutor’s Office of the ARC. 11. On 1 December 2005 the Prosecutor’s Office of the ARC informed the applicant that his arrest was justified and lawful. 12. On the same day the Court of Appeal of the ARC upheld the decision of 10 October 2005. 13. On 5 December 2005 the Tsentralnyy Court extended the applicant’s detention until 7 February 2006 on the same grounds as before. The applicant appealed. 14. On 20 December 2005 the Court of Appeal of the ARC upheld the decision of 5 December 2005. It held that there was sufficient evidence that the applicant had committed a serious crime. If at large, the applicant might continue his criminal activity, or hinder the investigation, or abscond. 15. On 18 January 2006 the Feodosiya Town Court (“the Feodosiya Court”) accepted the applicant’s case for trial. 16. On 6 February 2006, in the committal hearings, the Feodosiya Court maintained the applicant’s detention without giving any reason or setting any time-limit. 17. On 21 February 2006 the Feodosiya Court rejected the applicant’s request to change the preventive measure to an undertaking not to abscond, noting that the applicant was accused of having committed a serious crime, and might abscond or hinder the investigation. The applicant appealed. 18. On 23 May 2006 the Feodosiya Court found the applicant and U. guilty of several counts of bribe-taking and sentenced them to six and five years’ imprisonment, respectively, with confiscation of half of their property. 19. On 14 September 2006 the Court of Appeal of the ARC terminated proceedings in respect of one count of bribery concerning the applicant and upheld the remainder of the judgment. 20. On 24 July 2007 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law. 21. From 10 October 2005 to 4 February 2006 and from 5 February to 5 September 2006 the applicant was detained in Simferopol Pre-Trial Detention Centre no. 15 (Ізолятор тимчасового тримання № 15 м. Сімферополя) (“the Simferopol SIZO”) and in the Feodosiya Temporary Detention Centre (ізолятор тимчасового тримання м. Феодосія) (“the Feodosiya ITT”) respectively. 22. In the Simferopol SIZO the applicant shared cell no. 29, which measured 10 square metres, with four other detainees. There were no chairs in the cell and it was in a poor state of repair. There were cockroaches and other insects. The toilet space was very narrow – around 45-50 centimetres in width – which caused the applicant, who is 1.94 metres tall and weighs 160 kilograms, considerable difficulties. The detainees were able to take a shower only once every seven to ten days. 23. In the Feodosiya ITT the applicant was detained in cell no. 27, which measured 4.7 square metres, together with four or more detainees. The cell had no windows and no furniture. The toilet space was very narrow – around 30 centimetres in width. The applicant had not been able to take a shower, and detainees had had to sleep in turns. 30 minutes’ outside exercise was possible once every ten to fifteen days in a small yard which measured 4.5 square metres. The applicant submitted undated photos of a cell, in which it is apparent that the toilet (a hole in the floor plugged by a plastic bottle) is separated from the living space by a wall approximately one metre high. Beside the toilet there is a sleeping place (allegedly a mattress on a wooden bench or on the floor). 24. According to the Government, cell no. 29 in the Simferopol SIZO had been designed for occupancy by three inmates and had had 9.3 square metres of living space, thus allowing some 3.1 square metres per inmate, which had been in compliance with the domestic standards. In accordance with the relevant regulations, the cell had been disinfected on a daily basis and the detainees had had weekly access to bathing facilities. The statutory regulations did not include chair provision for this cell. 25. As regards the Feodosiya ITT, the applicant’s cell had 5.7 square metres of living space and had been designed to accommodate two inmates. The cell had been lit by electric light, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platform, separated toilet and wash-stand. The detainees had been provided with pillows and mattresses. The detention facility had had a shower room with hot and cold water and a small backyard for daily walks. 26. On 6 March 2006 the applicant lodged a complaint with the Feodosiya Court about the conditions of his detention in the ITT (overcrowding, no windows in the cell, no possibility of taking a shower, lack of out-of-cell activities). He requested that the court find the inaction of the Feodosiya ITT authorities in this respect unlawful and to oblige it to remedy the situation. 27. On 14 March 2006 the court forwarded the complaint to the Feodosiya Prosecutor’s Office as the appropriate decision-making body. 28. On 20 March 2006 the Feodosiya Prosecutor’s Office informed the applicant that some violations of the law by the Feodosiya ITT authorities had been established and that the relevant instructions had been given to remedy the situation, with no further details provided. 29. On 23 June 2006 the applicant again lodged his complaint with the Feodosiyskyy Court, having stated that neither his complaint to the Feodosiya ITT authorities nor to the prosecutor’s office had remedied his situation. He requested that the inaction of the Feodosiya ITT authorities be declared unlawful. This complaint was again forwarded by the court to the Feodosiya Prosecutor’s Office. 30. On 23 and 28 July 2006 the Feodosiya Prosecutor’s Office sent the applicant a reply similar to that in the letter of 20 March 2006. According to the applicant, he did not receive these letters. 31. On 1 July 2006 the applicant complained to the Court of Appeal of the ARC (“Court of Appeal”) about the failure of the Feodosiya Court to consider his complaint on the merits. He requested that the Court of Appeal oblige the latter to consider his complaint against the Feodosiya ITT on the merits and to bring disciplinary measure to bear on the respective judge of the Feodosiya Court. 32. On 1 August 2006 the Court of Appeal assigned the applicant’s complaint to the Leninskiy District Court of the ARC (“the Leninskiy District Court”). 33. On 2 August 2006 the applicant complained to the Prosecutor’s Office of the ARC about the alleged failure of the Feodosiya Prosecutor’s Office to consider his complaints about conditions of detention. 34. On 31 August 2006 the Leninskiy District Court refused to open administrative proceedings concerning the applicant’s complaint as the procedural decisions of a judge in such a case were not subject to appeal under the rules of administrative procedure. Any decision to the contrary would, in the court’s opinion, constitute an unlawful interference with the administration of justice. The court dismissed as unsubstantiated the applicant’s allegations that the failure of the Feodosiya Court to entertain his complaint amounted to a denial of access to a court. It noted in this respect ‒ in accordance with the Criminal Procedure Code and the Prosecutor’s Act (Закон України «Про прокуратуру») ‒ that it was for the prosecutor’s offices to supervise observance of the law in detention centres. The applicant was free to complain to the court about the prosecutor’s inaction, if appropriate, but he had failed to do so. 35. The applicant appealed. 36. On 12 October 2006 the applicant received a letter from the Prosecutor’s Office of the ARC in which it referred to the responses given earlier to the applicant by the Feodosiya Prosecutor’s Office. 37. On 12 December 2006 the Court of Appeal of the ARC upheld the decision of 31 August 2006. It noted in particular that the applicant had submitted to the Feodosiya Court a complaint regarding the poor conditions of detention but not an administrative claim against the Feodosiya ITT for the protection of his rights, as was required by the Code of Administrative Justice. This being so, his complaint had been forwarded to the competent authorities as required by the relevant domestic legislation. 38. On 21 April 2009 the Higher Administrative Court of Ukraine rejected the applicant’s appeal on the points of law. 39. On 17 September 2007 the applicant lodged an administrative claim with the Menskiy District Court of the Chernigiv Region (“the Mesnkiy District Court”) against the Feodosiya ITT authorities claiming, inter alia, damages for the harm inflicted by the inhuman and degrading conditions of his detention. 40. On 15 October 2007 the Menskiy District Court admitted the applicant’s claim for consideration. 41. On 23 November 2007 the Menskiy District Court rejected the claim as having been lodged outside the one-year time-limit set by the law, since the applicant had been transferred from the Feodosiya ITT on 5 September 2006. 42. The Court of Appeal and the Higher Administrative Court upheld the above decisions on 1 April 2008 and 21 December 2010 respectively.