CASE OF TSYGONIY 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;Violation of Art. 13;Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1976 and lives in Yevpatoriya. 6. On 25 February 2004 the applicant was arrested by the police on suspicion of drug dealing. On the same date a sachet of poppy straw was seized from his pocket. 7. On the same date the applicant complained to the Yevpatoriya Prosecutors’ Office that he had been ill-treated during his arrest, in particular that he had been handcuffed, beaten and blinded with a dark knitted hat and that he had suffered abrasions on his hands, face and back as a result of having been ill-treated. 8. On 16 March 2004 the Prosecutors’ Office refused to institute criminal proceedings into the applicant’s complaints, having found no appearance of criminal conduct on the part of the police officers. 9. On 13 April 2004 the Prosecutors’ Office of the ARC revoked this decision and ordered a further inquiry. Having examined available evidence and questioned witnesses, on 15 May 2004 the Yevpatoriya Prosecutors’ Office again refused to institute criminal proceedings for want of evidence of any ill-treatment. Based on the available materials, the applicant did not appeal against this decision. 10. On an unspecified date the applicant also complained to the Yevpatoriya Court that his detention had been unlawful. On 24 March 2004 the Yevpatoriya Court dismissed this complaint, attaching weight to the fact that on 27 February 2004 the lawfulness of the applicant’s detention was verified by a judge within the statutory seventy-two-hour time-limit. On 18 May 2004 the Court of Appeal of the Crimea upheld this decision. 11. On 25 February 2004 criminal proceedings were instituted against the applicant on suspicion of drug dealing and following his arrest he was detained in a police station. 12. On 27 February 2004 the applicant was brought before the Yevpatoriya Court, which allowed the investigator’s request to continue his detention for ten days pending a determination of whether he should be charged. The court referred to the fact that the applicant was suspected of having committed a serious offence and that a sachet of poppy straw had been found on him. 13. On 3 March 2004 the applicant was indicted for drug dealing. 14. On 5 March 2004 the Yevpatoriya Court decided, in the applicant’s presence, that he should be remanded in custody for two months pending the outcome of the pre-trial investigation. By way of reasoning, the court cited Article 148 of the Code of Criminal Procedure and noted that the applicant might abscond, as he had been charged with a serious offence, and also that he might tamper with evidence. Moreover, the court noted that the applicant was alleged to have committed the offence while he had been subject to an undertaking not to abscond in connection with an investigation for another unspecified offence, which, at the material time, had been pending since 2001. 15. On the same date the applicant, represented by two lawyers, appealed. He maintained, in particular, that he was a former policeman with a clean record and that he had never previously been convicted. Furthermore, he stated that he lived permanently in Yevpatoriya, had a child, and suffered from chronic health conditions, in particular pyelonephritis. The applicant acknowledged that at the material time he had been subject to an undertaking not to abscond in connection with a different criminal investigation, but noted that he had never breached that undertaking since it had been put in place in 2001. On an unspecified date the Court of Appeal of the Crimea held a hearing and dismissed the applicant’s appeal. The applicant did not inform the Court whether he had been present at that hearing. 16. On 22 April 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, allowed the investigator’s request to extend the applicant’s detention until 25 May 2004. By way of reasoning, the court noted that the prosecution objectively needed more time to complete the investigation. The court further rejected the applicant’s mother’s proposal to pledge her apartment as bail for the applicant’s release, referring to a risk that the applicant would reoffend given his previous conduct. Referring to a medical certificate, the court also dismissed the applicant’s allegations that his state of health was incompatible with his continued detention. 17. The applicant appealed, requesting that he be transported to the Court of Appeal for the hearing. He maintained that the case was not complex and that the failure of the investigative authorities to complete the investigation was only on account of a lack of diligence on their part. On 1 June 2004 the Court of Appeal of the Crimea considered the matter in the presence of the applicant’s advocate, but in the absence of the applicant himself, and upheld the previous decision. 18. In the meantime, on 24 May 2004 the Yevpatoriya Court, having held a hearing in the applicant’s presence, extended his detention until 15 June 2004 on essentially the same grounds as before. It additionally noted that the investigation had not been completed on account of the applicant’s own lack of cooperation. In particular, he had not agreed to confrontations taking place, his lawyer had been engaged in other activities on 14 May, and on 17 May he had also been examined by medical specialists. The applicant raised essentially the same arguments as stated above, and the court rejected them, referring to essentially the same reasons as it had previously. On 8 June 2004 the Court of Appeal of the Crimea upheld the decision of 24 May 2004. The applicant did not inform the Court whether he had been present at this hearing. 19. On 10 June 2004 the Yevpatoriya Court, having held a hearing concerning the extension of the applicant’s detention in his presence, authorised the extension until 25 June 2004 based on the necessity to carry out additional investigative activities, in particular to consider a request by the applicant’s lawyer to conduct another expert assessment. The applicant appealed, raising essentially the same arguments as before, and noting that since the investigation had almost been completed there was no risk that he would tamper with evidence or otherwise interfere with its effectiveness. On 6 July 2004 the Court of Appeal of the Crimea upheld the decision of 10 June 2004. The applicant did not inform the Court whether he had been present at this hearing. 20. In the meantime, on 17 June 2004 the Court of Appeal of the Crimea considered, as a court of first instance, the investigator’s request for an extension of the applicant’s detention and authorised the extension until 25 July 2004. It found that the situation remained unchanged from the time of the previous review, that the applicant’s detention was necessary to finish up the investigative activities, and that there was no reason to release the applicant. At the hearing the applicant himself was absent, but was represented by his advocate. 21. On 23 July 2004 the case was transferred to the Saky inter-regional prosecutor for approval of the indictment. By 28 July 2004 the case had been remitted to the Yevpatoriya Court for the commencement of trial proceedings. The applicant remained in custody, no new decision extending it having been taken. 22. On 31 August 2004 the Yevpatoriya Court held a preliminary hearing and found that the case was ready for trial. The court ordered that the applicant remain in detention, without specifying any reasons. 23. Between 1 September 2004 and 1 July 2005 the Yevpatoriya Court considered the applicant’s requests for his detention pending trial to be lifted on some fourteen occasions, in each case doing so on the same date as the request was lodged. The court dismissed all of these requests as unsubstantiated. 24. On 1 July 2005 the applicant was found guilty of drug dealing and abuse of office and sentenced to five years’ imprisonment. On 20 December 2005 and 17 March 2007 the Court of Appeal of the Crimea and the Supreme Court, respectively, dismissed the applicant’s appeals. The applicant did not present copies of the court decisions taken on the merits of his criminal case. 25. Between February and August 2004 the applicant was alternately held in the Yevpatoriya Temporary Detention Centre (the “IVS”) and two other facilities. 26. According to the applicant, the cell in which he was most often held in the Yevpatoriya IVS (cell no. 12) had measured about four square metres and had been shared by him with one to three other inmates. The cell had had no window. Sometimes a ventilator had been switched on, but the air it brought had come from other cells, including two cells where detainees who were sick with tuberculosis had been held. An electric light had been switched on all the time, interfering with detainees’ ability to sleep. On the other hand, this light had been so dim that it had not been possible to read. The cell had had no furniture. Detainees had taken turns to sleep on two bare mattresses and had put their food and personal belongings on the floor near them. The toilet had not been separated from the living area, and detainees had lacked privacy when using it. There had not been a sink and a tap had been situated some forty centimetres above the toilet. The water from the tap had been used for drinking, washing and flushing the toilet. The food had been very poor. Specifically, detainees had been given a piece of bread with tea for breakfast and dinner, and a bowl of soup and a plate of porridge for lunch. The cell had been infested with insects. Between 10 and 13 March 2004 the applicant had been detained in cell no. 3, where seven detainees had taken turns to sleep on two bunk beds. Detainees had not been taken out for exercise and had not been able to take a shower. On numerous occasions the applicant had asked to see a doctor, but his requests had been refused on account of a lack of funds. 27. The Government acknowledged that cell no. 12 had not had a window or beds. They noted, however, that it had had wooden planks on which the detainees could sleep, a toilet and ventilation. They further noted that cell no. 3 had been equipped with four bunk beds. The Government further submitted that the applicant had not been able to take a shower between 1 and 18 March 2004 and between 20 April and 21 May 2004 in view of his medical condition. For the same reason he had not always been taken outside for walks. The Government additionally noted that the applicant had been given sufficient access to medical services and that during the period at issue he had been visited by a doctor at least twelve times. 28. On 18 March 2004 the applicant was diagnosed with pneumonia and placed on in-patient treatment in the Simferopol SIZO hospital for a period of about one month. Upon his return to the IVS, on 15 and 17 May 2004 respectively the applicant was examined by doctors, diagnosed with chronic prostatitis and scabies and prescribed an unspecified treatment. 29. On 4 June 2004 the applicant was found to need in-patient treatment for scabies, as the previous doctors’ recommendations had not been followed. 30. On 8 June 2004 the applicant was hospitalised in the Saky hospital and was treated until 24 June 2004. According to the applicant, in the hospital he had stayed in a room with barred windows located on the fifth floor which had been guarded by two policemen, and he had been handcuffed to his bed at all times. He presented a photo of himself being handcuffed to a bed in support of his allegations. 31. On 17 June 2004 the Head of the Yevpatoriya Police Department conducted an internal investigation following the applicant’s complaints about the conditions of his detention. He noted, in particular, that as of the date of his placement in the Yevpatoriya IVS (25 February 2004), the IVS had been overpopulated by more than half of its capacity. He further noted that cell no. 12, in which the applicant had been held at that time, had not been equipped with beds but had had wooden planks and a shelf for personal belongings, that the detainees had been provided with mattresses and linen, that the cell had been well ventilated, and that it had offered sufficient artificial light. He further noted that during the period of his stay in the IVS the applicant had twice taken a shower. 32. According to the applicant, between February and July 2004 he lost forty kilograms in weight altogether. 33. On 1 June 2009 the applicant lodged a civil action with the Yevpatoriya Court complaining about the conditions of his detention in the Yevpatoriya IVS and seeking moral damages. 34. On 3 June 2009 the applicant was given a time-limit to rectify the procedural shortcomings of his submissions, in particular, to present evidence in support of his allegations, grounds for releasing him from the need to present such evidence, to specify, what were the unlawful actions or omissions of the State authorities causing him damage and to present his calculations for the amount of damage claimed. 35. On 11 June 2009 the court decided to leave the applicant’s claim without consideration on the basis that he had not rectified the procedural shortcomings of his submissions. 36. The relevant provisions of the Constitution of Ukraine can be found in the judgment in the case of Svershov v. Ukraine, no. 35231/02, § 39, 27 November 2008. 37. The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 can be found in the judgments in the cases of Molodorych v. Ukraine, no. 2161/02, § 57, 28 October 2010 (insofar as it refers to Articles 148, 149, 150 and 237); Khayredinov v. Ukraine, no. 38717/04, § 21, 14 October 2010 and Znaykin v. Ukraine, no. 37538/05 (Sect. 5) (Eng).