CASE OF KHARCHENKO v. UKRAINE
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
4. The applicant was born in 1958 and lives in Kyiv. 5. On 21 April 2000 the Prosecutor of the Vatutinsky District of Kyiv (“the Vatutinsky District Prosecutor”) instituted proceedings with regard to embezzlement of funds of the company R. The applicant was originally a witness in the case. 6. On 4 April 2001 the Vatutinsky District Prosecutor instituted criminal proceedings against the applicant on suspicion of his involvement in the embezzlement. 7. On 7 April 2001 the Vatutinsky District Prosecutor decided that the applicant should be detained, as he was suspected of a crime punishable by imprisonment. 8. On 17 May 2001 the investigator instituted another criminal case against the applicant on suspicion of his involvement in embezzlement and joined it to the first criminal case against the applicant. 9. On 3 June 2001 the same prosecutor decided that the applicant's detention should be extended to 4 July 2001. 10. Between 27 June and 6 September 2001 and on 14 September 2001 the applicant and his lawyer studied the criminal case file. 11. On 14 September 2001 the applicant was indicted for theft. 12. On 28 September 2001 the indictment was approved by the Vatutinsky District Prosecutor. The case was transferred for examination on its merits to the Vatutinsky District Court of Kyiv (“the Vatutinsky Court”). 13. On 26 September 2001 the applicant's advocate lodged a request with the Vatutinsky Court seeking the applicant's immediate release. 14. On 5 October 2001 the Vatutinsky Court received the case file and on 12 October 2001 Judge K. of the Vatutinsky Court held a preparatory hearing in the case. 15. On 15 October 2001 Judge K. decided that the criminal case against the applicant should be remitted for additional investigation. He also rejected the applicant's request for release of 26 September 2001, finding no grounds for changing the preventive measure applied by the prosecutor. In particular, the court stated that the applicant had been detained on the basis of the prosecutor's decision since 7 April 2001 in order to prevent him from avoiding investigation and appearance in court, obstructing the establishment of the truth in the criminal case and continuing with criminal activity, and in order to ensure compliance with procedural decisions in cases where the law provides for deprivation of liberty for more than three years. No time-limit for detention was fixed. 16. On 29 January 2002 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the resolution of 15 October 2001 and remitted the case for examination on the merits to the Desnyansky District Court, Kyiv (formerly Vatutinsky District, but after changes to the judicial districts in Kyiv “the Desnyansky Court”). 17. On 4 March 2002 the Desnyansky Court held a preparatory hearing in the case. It examined the applicant's request to be released on bail and found no reasons for allowing it. It also noted that the applicant had been detained lawfully, given that criminal proceedings against him were pending. 18. On 11 March 2002 the applicant's lawyer requested the Desnyansky Court to order the applicant's release. This request was refused the same day. The court considered that the applicant might evade and obstruct justice and, given his age, state of health, family status and economic status there were no grounds for replacing the detention with another preventive measure. On 14 March 2002 the court rejected a similar request by the applicant on the same grounds, adding that the seriousness of the charges had also been taken into account. Two more similar requests by the applicant were rejected by the court on 4 and 19 April 2002 on the same grounds. 19. On 29 April 2002 the Desnyansky Court ordered that the case be again remitted for additional investigation. The court also upheld the applicant's detention, noting without further elaboration that there were no grounds for changing the preventive measure. No time-limit for detention was fixed. 20. On 23 July 2002 the Court of Appeal quashed the resolution and remitted the case for re-examination on the merits. The court also noted that it had no legal basis for deciding on the applicant's request for release and considered that the conclusions of the first-instance court on the matter were lawful, reasoned and corresponded to the case file materials. Therefore, it left the preventive measure unchanged. 21. In August 2002 the Court of Appeal ordered the transfer of the criminal case from the Desnyansky Court to the Golosiyevsky District Court of Kyiv (“the Golosiyevsky Court”). 22. On 28 August 2002 the Golosiyevsky Court ordered a hearing on the merits on 13 September 2002. 23. On 14 October 2002 Judge C. resumed examination of the case on the merits and informed the applicant's lawyer that she had decided not to remit the case for additional investigation. The court also rejected the applicant's request for release, on the ground that he might avoid and obstruct justice. 24. On 17 October 2002 the defence challenged Judge C. 25. On 24 December 2002 Judge C. of the Golosiyevsky Court decided to remit the case for additional investigation. It also decided that there were no grounds for changing the preventive measure in respect of the applicant. 26. On 13 March 2003 the Court of Appeal quashed the decision of 24 December 2002 and returned the case to the Golosiyevsky Court for examination on the merits. It also decided again that the applicant should remain in custody, as he had been charged with serious offences which would warrant deprivation of liberty after conviction. 27. On 13 May 2003 the Golosiyevsky Court decided that the case should be remitted for additional investigation to the Vatutinsky District Prosecutor. It also ordered the applicant's continued detention, without giving any particular reasons for it. The court also rejected the applicant's request for termination of the proceedings in the case. 28. On 28 July 2003 the Supreme Court rejected the applicant's request for leave to appeal on points of law lodged against the decision not to terminate the proceedings, as the applicant had failed to comply with procedural formalities. 29. On 4 August 2003 the Desnyansky District Prosecutor released the applicant from detention. The applicant signed an undertaking not to abscond. 30. On 30 August 2003 the applicant's advocate unsuccessfully requested the prosecution to amnesty the applicant, in view of the nature of the charges brought against him and his poor state of health. 31. On 24 October 2003 the criminal investigation was adjourned because one of the suspects was being searched for. 32. On 30 December 2003 the investigator of the Desnyanskiy Distirct Prosecutor's Office terminated the criminal proceedings against the applicant on all but two of the charges, for lack of evidence of his involvement in the crime. The criminal case concerning the remaining charges was transferred to the Desnyanskiy District Police Department. 33. On 18 September 2004 the investigator of the Desnyanskiy District Police Department terminated the criminal proceedings against the applicant concerning the remaining charges for lack of evidence of crime and initiated criminal proceedings in respect of crimes committed by an unknown person. This decision appears to have been mistakenly dated 18 September 2003 instead of 18 September 2004. Next day the criminal proceedings were suspended for failure to establish the identity of the suspected offender. 34. Between 20 April 2001 and 4 August 2003 the applicant was held in the Kyiv SIZO no. 13, a detention facility with, according to the applicant, poor prison conditions and insufficient medical treatment. 35. According to the Government, in that facility the applicant was held in the following cells: - cell No. 30, measuring nine square metres and designed for three inmates; - cell No. 64, measuring 52.36 sq. m and designed for twenty inmates; - cell No. 66, measuring 53.07 sq. m and designed for twenty-one inmates; - cell No. 68, measuring 61.19 sq. m and designed for twenty-four inmates; - cell No. 72, measuring 10.21 sq. m and designed for four inmates; - cell No. 76, measuring 9.92 sq. m and designed for three inmates; - cell No. 116, measuring 10 sq. m and designed for four inmates; - cell No. 117, measuring 9.96 sq. m and designed for three inmates; - cell No. 128, measuring 15.95 sq. m and designed for six inmates; - cell No. 195, measuring 22.44 sq. m and designed for eight inmates; - cell No. 258, measuring 23.38 sq. m and designed for five inmates; - cell No. 263, measuring 24.9 sq. m and designed for six inmates; - cell No. 326, measuring 12.9 sq. m and designed for five inmates; - cell No. 328, measuring 12.9 sq. m and designed for five inmates; - cell No. 333, measuring 12.9 sq. m and designed for eight inmates; - cell No. 336, measuring 12.9 sq. m and designed for five inmates. All the cells had a constant supply of cold water, natural and artificial light, a separated toilet and ventilation. The number of detainees did not exceed the number of places in each cell. 36. According to the applicant, he was not held in cells 333 and 336. Cells 64, 66 and 68 had 40 bunks each. Cell 72, measuring 9 sq. m, was damp and very cold in winter. In this latter cell he spent in total about 18 months. In cell no. 195, which had very poor ventilation, he spent about six months in total. 37. According to the Government, the applicant had a full medical examination on arrival at the SIZO on 20 April 2001. He did not make any complaints about his health and was registered for follow-up (диспансерний облік) in respect of his chronic illnesses. 38. On 16 November 2001, 24 April 2002 and 15 April 2003 the applicant had regular medical check-ups and was X-rayed. The examination revealed no lung problems. 39. According to a medical certificate issued on 6 December 2001, the applicant had a mild form of diabetes and required a special diet but not medical treatment. 40. According to a medical certificate issued on 10 July 2002 the applicant had been diagnosed with ischaemic heart disease, stenocardia and diabetes. 41. On 15 January 2003 the applicant was examined by a cardiologist, who found him to be suffering from ischaemic heart disease and stenocardia. 42. On 27 January 2003 the applicant asked for medical assistance, complaining of chest pain and dizziness. Following a medical examination it was decided to place the applicant in the medical wing of the SIZO. From 28 January 2003 the applicant was treated in the medical wing of the SIZO, with a diagnosis of neurocirculatory dystonia and cervical osteochondrosis. The applicant was prescribed several different types of medication. Every third day he was examined by a general doctor. On 29 January 2003 he was examined by the cardiologist who found that the applicant had no heart problems. On 30 January 2003 the applicant was examined by a neuropathologist. On 11 March 2003 the applicant left the medical wing of the SIZO in a satisfactory state of health. Following this treatment, and until his release from detention, the applicant did not consult doctors with any health-related complaints. 43. Following his release, the applicant underwent medical treatment in Kyiv Hospital no. 15 for arrhythmogenic cardiomyopathy and ciliary arrhythmia from 7 to 27 August 2003. 44. Article 253 of the Code of Criminal Procedure provides that having decided to commit an accused for trial, the judge should resolve, among other things the issue concerning the change, discontinuation or application of a preventive measure. Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 3942, 4 March 2010).