BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF RUDENKO v. UKRAINE
(Application
no. 5797/05)
JUDGMENT
STRASBOURG
25
November 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Rudenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Rait
Maruste,
President,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Stephen Phillips,
Deputy Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment:
PROCEDURE
- The
case originated in an application (no. 5797/05) 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 Vladimir Dmitriyevich
Rudenko (“the applicant”), on 21 January 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been held in detention
unlawfully, for an unreasonable period of time and without adequate
judicial review. He also complained that the criminal proceedings
against him had lasted too long.
- By
a partial decision of 22 September 2009, the Court decided to adjourn
the examination of the above complaints and declared the remainder of
the application inadmissible. In accordance with Protocol No. 14, the
application was allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Sevastopol.
A. Criminal proceedings against the applicant
- On
29 August 2002 the applicant was detained on suspicion of illegal
drug possession and attempted drug smuggling. He was taken to
Sevastopol Temporary Detention Centre (“the Sevastopol ITT”),
where he was held until his release in December 2005 (see paragraph
24 below).
- In
August and September 2002 criminal proceedings were instituted
against four other persons on similar charges.
- On
31 August 2002 the Leninskyy District Court of Sevastopol (“the
Leninskyy Court”) extended the applicant’s detention to
eight days.
- On
5 September 2002, following a hearing in which the applicant’s
lawyer participated, the court allowed the prosecutor’s request
for the applicant’s detention for two months. It examined the
lawyer’s arguments about the applicant’s frail health –
second-degree hypertension and cerebral atherosclerosis – but
found no indication that this was incompatible with detention. On the
other hand, the court noted that if left at liberty the applicant
might abscond, obstruct justice or reoffend.
- On
25 October 2002, after a hearing in which the prosecutor
participated, but at which the applicant and his lawyer were absent,
the Leninskyy Court extended the detention to four months at the
investigator’s request. It justified the extension with the
need to carry out further investigation and the potential risk of the
applicant’s absconding.
- On
23 December 2002, following a hearing which was also held in the
absence of the applicant and his lawyer, but in which the prosecutor
participated, the Sevastopol City Court of Appeal (“the Court
of Appeal”) allowed the prosecutor’s request for an
extension of the detention to six months. It justified it with the
fact that investigation was yet to be completed, the seriousness of
the charges against the applicant and the inherent risk of his
absconding. This ruling of the court was final.
- On
21 February 2003, following a hearing in which the applicant’s
lawyer participated, the Court of Appeal extended, by a final ruling,
the applicant’s detention to nine months (until 28 May 2003) at
the investigator’s request. The court relied on the same
arguments as before. It refused the lawyer’s request for the
applicant’s release on health grounds, referring to a lack of
evidence that his state of health was incompatible with detention.
- On
15 May 2003 the pre-trial investigation was declared complete.
- From
19 May to 9 June 2003 the applicant and his lawyer studied the case
file.
- The
applicant complained to the prosecution authorities on a number of
occasions that his continued detention after 28 May 2003 had been
unlawful, referring to the fact that it was not covered by any
decision. His complaints were forwarded to the Leninskyy Court, where
they allegedly remained without response.
- On
10 June 2003 the charges against the applicant, as well as against
the other co-accused, were extended to participation in a criminal
organisation and unlawful production, possession and smuggling of
drugs and drug precursors by an organised group.
- On
12 June 2003 the pre-trial investigation, which had been resumed
following the modification of the charges, was declared complete.
- From
17 June to 18 July 2003 the applicant and his lawyer studied the case
file.
- On
30 July 2003 the criminal file was sent to the Leninskyy Court.
- On
29 August 2003 the court held a preparatory hearing for the trial,
during which the applicant unsuccessfully requested to be released
subject to an undertaking not to abscond. He argued that his health
was too frail and submitted medical documents to that regard.
Furthermore, the applicant noted that he had a family and a permanent
place of residence, was of rather advanced age, had only positive
character references and no previous criminal record. The case file
does not contain a copy of the aforementioned ruling of the court.
According to the applicant, it disregarded the issue of his detention
altogether.
- According
to a letter of the Sevastopol City Council of Judges of 31 March
2005 in reply to the applicant’s complaint about the length of
the criminal proceedings against him, the duration of these
proceedings was caused by: the significant number of lawyers (seven),
some of whom had joined the examination of the case late and required
additional time to study the case file; the breakdown of a tape
recorder after a part of the trial had been recorded on it; and the
expiry of the presiding judge’s term of office and the
reassignment of the case to a different judge.
- On
15 July 2005 the applicant asked the Court of Appeal to review the
lawfulness of his detention after 28 May 2003. He noted that after
that date his detention had not been covered by any court decision
against which he could appeal in compliance with the
criminal-procedure legislation.
- On
20 July 2005 the Court of Appeal forwarded the applicant’s
request to the Leninskyy Court “for a procedural decision to be
taken”.
- On
22 December 2005 the Leninskyy Court released the applicant subject
to an undertaking not to abscond, at his lawyer’s request. The
court established that the applicant’s health had deteriorated
in detention. It also took note of the fact that his wife was
disabled and needed his support. The court noted that the applicant
had participated in military operations, for which he had received
numerous government awards. It found no indication that he would
attempt to obstruct justice or abscond if released.
- The
criminal proceedings against the applicant remain pending before the
first-instance court. According to the information provided by the
Government, since the commencement of the trial in July 2003 about
fifty hearings have taken place, five of which were in 2003; fourteen
in 2004; nine in 2005; fifteen in 2006; and eight in 2007. Overall,
the hearings were adjourned on over eighty occasions, with the
reasons for about thirty such adjournments (in total for one year and
ten months) being unknown. Not a single hearing has been held since
the end of 2007, mainly because of the repeated absence of witnesses
and the co-defendants’ lawyers. Between 2007 and 2009 the
Leninskyy Court issued seven orders for the compulsory presence of
witnesses (between eight and eighteen persons) to be ensured by the
police. It is not known whether those orders were enforced.
- The
most recent development in the trial known to the Court is the expiry
of the mandate of the presiding judge in November 2009.
B. The applicant’s state of health and medical
treatment
1. As regards the hypertension
- Since
1975 the applicant has been suffering from hypertension and cerebral
atherosclerosis. In 2000, his condition was diagnosed as
“second degree hypertension”.
- During
the period of his detention in the Sevastopol ITT from 29 August 2002
to 22 December 2005 an ambulance was called for the applicant at
least fifty times on account of his hypertension.
- The
ITT administration kept a medical logbook of the applicant’s
blood pressure. According to the entries for the period from 9
November 2002 to 28 May 2004 (signed by the acting chief of the ITT),
his blood pressure was taken almost on a daily basis.
- On
12 December 2002 the chief of the ITT sent a note to the applicant’s
lawyer, at the latter’s request, in which he stated that
between September and December 2002 the medical attendant of the ITT
had examined the applicant and provided him with medical assistance
for hypertension on ten occasions.
- On
19 December 2002 the applicant was examined by a therapist who
diagnosed a hypertensive crisis, prescribed some medication and
recommended that he be treated as an in-patient.
- On
21 December 2002 the applicant underwent another medical examination
– by a leading cardiologist in Sevastopol Hospital no. 1
(“Hospital no. 1”), who confirmed the aforementioned
diagnosis and recommendation and provided him with medical
assistance.
- On
17 January 2003 the applicant was examined in Sevastopol Hospital no.
9. The doctors found that he was suffering from cerebral hypertension
of the second degree, ischaemic heart disease, and atherosclerotic
cardiosclerosis with heart rhythm disturbances. After the applicant
had received medical assistance, he was taken back to the ITT.
- On
30 January 2003 the applicant was taken to Hospital no. 1, where he
stayed until 6 February 2003 receiving in-patient medical treatment.
- On
3 March 2003 he complained to the Sevastopol prosecutor that his
medical condition was incompatible with detention.
- On
29 August 2003 the Leninskyy Court ordered a medical examination of
the applicant in the ITT by specialists of Hospital no. 1; this took
place on an unspecified date.
- On
19 July 2004 the applicant unsuccessfully requested that the
Leninskyy Court order an expert medical examination with a view to
establishing whether he was fit for detention.
- On
16 December 2005 he underwent another medical examination in Hospital
no. 1. The doctors diagnosed him with third-degree hypertension at
the crisis stage, ischaemic heart disease, coronary sclerosis and
cardiosclerosis and recommended his urgent hospitalisation.
- However,
the applicant objected to his hospitalisation until the completion of
the court hearing scheduled for 22 December 2005.
- In
its ruling of 22 December 2005 ordering the applicant’s
release, the Leninskyy Court noted that his health had deteriorated
during detention (see paragraph 24 above).
- After
his release, the applicant received in-patient treatment for
hypertension in Hospital no. 1 from 29 December 2005 to 20 January
2006.
- On
8 February 2006 he was examined by the Sevastopol City Medical and
Sociological Expert Commission and was recognised as falling into the
“third category” of disability (the mildest) indefinitely
on the grounds of his “general state of health”.
- On
4 December 2009 Mr D., who presented himself as the medical attendant
working in the Sevastopol ITT at the time the applicant was detained
there, gave written explanations at the Government’s request,
following the communication of the application to the latter.
According to him, he had closely surveyed the applicant’s
medical condition, namely, the level of his blood pressure, and had
administered pressure-lowering medication whenever required. In those
cases where the medication had not had the necessary effect, an
ambulance had been called.
2. As regards the hearing problems
- According
to the applicant, his hearing started to deteriorate at the beginning
of 2003.
- On
17 May 2004 an otologist examined and diagnosed him with acute
sensorineural hearing loss in both ears and prescribed medication.
- In
September 2009 the applicant underwent surgery on account of
exostosis (formation of new bone on the surface of a bone) of both
ear canals.
II. RELEVANT DOMESTIC LAW
- Before
the amendment of 21 June 2001, Article 244 of the Code of Criminal
Procedure (“the CCP”) required trial courts to give
reasons for changing a preventive measure in its ruling delivered at
the preparatory hearing. The aforementioned amendment lifted that
requirement.
- The other relevant provisions of the CCP (as worded at
the material time, namely: before the amendments of 25 April 2003,
which entered into force on 25 July 2003) are summarised in the
judgment Nikolay Kucherenko v. Ukraine, no. 16447/04, §§
22-23, 19 February 2009.
THE LAW
I. SCOPE OF THE CASE
- In reply to the Government’s observations, the
applicant raised a complaint under Article 3 of the Convention
regarding the material conditions of his detention in the Sevastopol
ITT. The Court notes that this new belated complaint is not an
elaboration of the applicant’s original complaints on which the
parties have commented. The Court considers, therefore, that it is
not appropriate to take this matter up separately in the present
context (see, mutatis mutandis, Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained about the overall length of his pre-trial
detention and the lack of adequate judicial review of its lawfulness.
He also alleged that his detention after 28 May 2003 had been
unlawful, not having been covered by any order in that regard. He
relied on Article 5 of the Convention, the relevant parts of which
read 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 ...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful. ...”
A. Admissibility
- The
Court notes that this part of the application 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. Article 5 § 1 of the Convention
- The
applicant contended that he had been detained unlawfully between 28
May 2003 and 22 December 2005.
- The
Government disagreed, arguing that the contested detention had been
based on adequate domestic legislation.
- The
Court notes that on 28 May 2003 the term of the applicant’s
detention, ordered for a limited period at the pre-trial
investigation stage, expired (see paragraph 12 above). At that point
he was in the process of studying the case file (started on 19 May
and finished on 9 June 2003) and therefore his detention during that
period was not required to be authorised by any decision under the
domestic legislation then in force (follow the reference given in
paragraph 48 above).
- Subsequently,
the pre-trial investigation was resumed and went on for three days
(10-12 June 2003), after which a period of apparent inactivity
followed until 17 June 2003, when the applicant was given further
access to the case file (see paragraphs 17-18 above). During that
week the applicant continued to be detained without any decision
having been issued in that regard in spite of the provisions of
Article 156 of the Code of Criminal Procedure (“the CCP”)
requiring the immediate release of a detainee in the event of the
expiry of the maximum period of detention previously ordered and not
duly extended (see paragraph 48 above).
- The
Court further observes that the applicant’s detention during
the subsequent month (between 17 June and 18 July 2003) was, again,
not required to be authorised by any decision, because the applicant
was studying the case file.
- The
applicant’s detention continued for another twelve days without
being covered by any decision, contrary to the CCP provisions, until
the case was sent to the trial court on 30 July 2003. At that point
the pre-trial investigation was formally considered complete, whereas
the judicial proceedings had not yet commenced.
- The
Court notes that the Ukrainian legislation did not (and does not)
provide for any basis for pre-trial detention after the transfer of a
case to a trial court and before the preparatory hearing for the
trial (see paragraph 48 above). In the present case the applicant was
in such a situation, being detained without any decision from 30 July
to 29 August 2003, that is, for another month.
- In
sum, the applicant’s detention between 28 May and 29 August
2003 was not covered by any judicial decision: contrary to the
domestic law (twenty days); in compliance with the law not requiring
any authorisation for detention while a case file is being studied
(forty-three days); and against the background of a legal vacuum
(thirty days).
- As
to the subsequent period, between 29 August 2003 and 22 December
2005, the sole basis for the applicant’s detention was
apparently the ruling of the Leninskyy Court of 29 August 2003
commencing the trial, by which the preventive measure chosen earlier
was upheld. Even though the Court does not have a copy of that ruling
in the case file, it is inclined to believe the applicant’s
allegation of a lack of any reasoning concerning his detention, given
the fact that such reasoning was not explicitly required under the
domestic legislation (see paragraph 47 above). Moreover, the
Government did not argue the point and previous case-law demonstrates
that it was usual practice.
- The
Court notes that it has previously examined similar situations in
other cases against Ukraine and with respect to the same legal
framework. The Court has found continued pre-trial detention not
covered by any order to be incompatible with the requirements of
lawfulness under Article 5 § 1 given that there was no judicial
decision ordering such detention (see, for example, Yeloyev v.
Ukraine, no. 17283/02, §§ 48-51, 6 November 2008, and
Solovey and Zozulya v. Ukraine, nos. 40774/02 and
4048/03, §§ 70-73, 27 November 2008). As regards the
consecutive period of detention under the judicial order, the Court
found that judicial detention orders for indefinite periods of time
and without indication of the grounds for such detention did not
afford the applicant the adequate protection from arbitrariness which
is an essential element of the “lawfulness” of detention
within the meaning of Article 5 § 1 (see Yeloyev, cited
above, §§ 52-55).
- The
Court sees no reason to depart from its reasoning given in the
above-mentioned judgments and concludes that the applicant’s
detention in the present case between 28 May 2003 and 22 December
2005 was in breach of Article 5 § 1 of the Convention.
2. Article 5 § 3 of the Convention
- The
applicant maintained that the length of his detention was unjustified
and unreasonable.
- The
Government disagreed. They submitted that the overall duration of the
detention could not be considered unreasonable given the complexity
of the case and the numerous investigative measures that had to be
undertaken. They further contended that the applicant’s
continuous detention was a justified preventive measure given the
seriousness of the charges against him and the inherent risk of his
absconding or hindering the investigation.
- The
Court notes that the applicant was detained on 29 August 2002 and
released on 22 December 2005 subject to an undertaking not to
abscond. Accordingly, his pre-trial detention lasted for three years,
three months and twenty three days, which was not short in absolute
terms.
- Given
the fact that, when extending the applicant’s detention, the
domestic courts essentially relied on the gravity of the charges
against him and the presumably inherent risk of his absconding,
without due assessment of any other circumstances of his particular
case, the Court considers that his detention lacked “relevant
and sufficient” grounds (see, among many others, Doronin v.
Ukraine, no. 16505/02, §§ 62-63, 19 February 2009).
- This
consideration is sufficient to enable the Court to conclude that
there has been a violation of Article 5 § 3 of the Convention.
3. Article 5 § 4 of the Convention
- The
applicant submitted that his detention had not been subjected to
adequate judicial review for the following reasons: firstly, the
hearings held during the pre-trial investigation stage at which the
decisions were taken to extend it until 28 May 2003 had mostly taken
place in his and his lawyer’s absence; and, secondly, there had
been no decision covering his subsequent detention and he had
therefore had no document to contest.
- The
Government disagreed. They noted that all of the applicant’s
requests for release, during both the pre-trial investigation stage
and the trial, were duly and speedily examined. Moreover, on 22
December 2005 the trial court allowed his request and released him.
- The
Court reiterates that proceedings concerning detention should in
principle meet the basic requirements of a fair trial regardless of
whether the court decisions impose or extend detention or test its
lawfulness. Such proceedings must be adversarial and must always
ensure equality of arms between the parties (see Trzaska v.
Poland, no. 25792/94, § 74, 11 July 2000).
- Turning
to the present case, the Court notes that on 25 October and 23
December 2002 the courts allowed the prosecutor’s requests for
extension of the applicant’s detention for a total of four
months following hearings held in the presence of the prosecutor, but
in the absence of both the applicant and his lawyer. There is no
indication in the case file that the applicant or his lawyer waived
their right to participate in the above hearings. Accordingly, the
guarantee of equality of arms in the course of those two hearings was
not respected since the applicant had no opportunity to comment on
the arguments or contest the reasons invoked by the prosecuting
authorities to justify his detention.
- In
so far as the applicant’s detention between 28 May (the expiry
of his judicially ordered pre-trial detention) and 29 August 2003
(the committal hearing) is concerned, the Court does not lose sight
of the fact that, during that period, the applicant did not lodge any
formal applications for release with a court. It notes however that,
as stated above (see paragraph 59), the detention at issue was not
covered by any decision (see, conversely, Shalimov v. Ukraine,
no. 20808/02, §§ 9, 54 and 57, 4 March 2010,
where the complained-of detention had been ordered by prosecutor’s
decisions amenable to judicial challenge and therefore the
applicant’s complaint under Article 5 § 4 in that regard
was rejected for the failure to use that remedy). Furthermore, the
applicant’s detention during the mentioned period was for the
most part – seventy-three of ninety-three days (see paragraph
59 above) – either in compliance with the domestic law (the
period during which the case file was studied) or not legally
regulated at all (the period after the transfer of the case from the
investigation authority to the trial court and prior to the
preparatory hearing).
- Accordingly,
the Court concludes that the applicant had no effective remedy
available to have the lawfulness of his detention during those
seventy-three days reviewed.
- As
to the remaining twenty days (see paragraphs 55, 57 and 59 above),
the applicant’s detention continued in spite of the requirement
for his immediate release – by virtue of Article 156 of the CCP
and not subject to a separate request for release – about which
the applicant unsuccessfully complained to the prosecution (see
paragraph 15 above). The Court therefore considers that, under the
circumstances, he was under no obligation to formally apply for his
release.
- In
the light of all the foregoing, the Court finds a violation of
Article 5 § 4 of the Convention on account of the court
hearings of 25 October and 23 December 2002 held in the absence
of both the applicant and his lawyer, and the inability of the
applicant to effectively contest the lawfulness of his detention
between 28 May and 29 August 2003.
- As
regards the period during the judicial proceedings (between 29 August
2003 and 22 December 2005), the Court observes that under the
domestic law the applicant was entitled to lodge various requests
with the trial court, including those for his release. The Court is
not, however, aware of any such requests by the applicant other than
the one which he introduced in July 2005 and which was allowed
in December that same year. It cannot speculate whether or not the
examination of those requests would have been in compliance with
Article 5 § 4 of the Convention.
- The
Court therefore finds that there has been no violation of Article 5
§ 4 of the Convention in respect of the alleged lack of an
effective procedure at the applicant’s disposal for judicial
review of the lawfulness of his detention between 29 August 2003 and
22 December 2005.
III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- The applicant complained that the length of the
criminal proceedings against him had been incompatible with the
“reasonable-time” requirement laid down in Article 6 §
1 of the Convention. He further complained under Article 13 of the
lack of an effective remedy for the length-of-proceedings complaint.
The provisions read as follows in the relevant part:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
applicant maintained his complaints.
- The
Government contested them.
- The Court reiterates that the reasonableness of the
length of these proceedings must be assessed in the light of the
circumstances of the case and with reference to the criteria laid
down in the Court’s case-law, in particular the complexity of
the case, the applicant’s conduct and the conduct of the
competent authorities (see, among the extensive case-law on the
matter, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999 II, and Lugovoy v.
Ukraine, no. 25821/02, § 33, 12 June 2008).
- The
Court notes that the criminal proceedings against the applicant in
the present case commenced on 29 August 2002 and remain pending
before the first-instance court. They have therefore lasted for over
seven years and eight months, of which the pre-trial investigation
took eleven months, and for the remaining six years and nine months
the case has been before the trial court. Furthermore, as submitted
by both parties, there has not been a single hearing on the case
since 2007 (see paragraph 25 above).
- The
Court has frequently found violations of Articles 6 § 1 and 13
of the Convention in cases raising issues similar to the one in the
present case (see, for example, Sergey Volosyuk v. Ukraine,
no. 1291/03, §§ 66 and 70, 12 March 2009).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- There
have accordingly been breaches of Articles 6 § 1 and 13 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
not received adequate and sufficient medical treatment during his
detention. He submitted, in particular, that there had been no
medical staff in the Sevastopol ITT, where he had been detained. The
applicant contested the veracity of the explanations of Mr D. (see
paragraph 43 above), alleging that the latter had been working in the
ITT as a guard, not as a medical attendant. In substantiation, he
referred to the fact that the extract from the medical logbook had
been signed by the acting chief of the ITT (see paragraph 29 above),
not by a medical specialist, for there had been none. Lastly, the
applicant insisted that his health condition had warranted his
hospitalisation and in-patient treatment, which, although this was
confirmed by doctors on many occasions, had been denied to him.
- The
Government contended that the applicant’s condition had
received close attention and that adequate medical assistance had
been provided, each time it had been needed, by the ITT medical
attendant, an ambulance team, or doctors from the local hospitals.
They further noted that the applicant had refused urgent
hospitalisation following his medical examination on 16 December
2005.
- The Court emphasises that Article 3 of the
Convention imposes an obligation on the State to ensure, given the
practical demands of imprisonment, that the health and well-being of
a prisoner are adequately secured by, among other things, providing
him with the requisite medical assistance (see Kudła v.
Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 XI).
- In
the present case the applicant had two major concerns regarding his
health during detention: he was suffering from hypertension and his
hearing was deteriorating.
- The
Court notes that the applicant was under constant medical supervision
during the whole period of his detention in respect of the
hypertension. Despite maintaining that there had been no qualified
medical staff at the ITT, the applicant neither contested the fact
that his blood pressure was measured almost on a daily basis nor
alleged that the ITT administration had failed to provide him with
medication or refused to call an ambulance for him whenever
requested.
- The
medical evidence before the Court rather shows that during his
detention the applicant regularly sought, and obtained, medical
assistance in respect of his hypertension. Thus, in addition to the
medical aid provided to him by the ambulance doctors on at least
fifty occasions, he was examined by at least six therapists and
cardiologists in two different local hospitals, received in-patient
medical treatment in one of those hospitals in January and February
2003, and refused recommended hospitalisation in December 2005.
- Furthermore,
although disputing the adequacy of his treatment, the applicant did
not even comment on what that treatment had actually been and why he
considered it inadequate. Neither did he refer to any specific
occasion when he had been in need of medical aid but had not received
any.
- The
Court therefore finds no reason to consider that the medical
assistance given to the applicant during his detention was inadequate
or insufficient. The fact that his health deteriorated (namely, his
hypertension increased from the second to the third degree –
see paragraphs 38 and 40 above) is not in itself an indication to the
contrary, for such deterioration could well have been within the
natural course of the condition given its rather long history (see
paragraph 27 above).
- As
to the gradual hearing loss suffered by the applicant starting from
the beginning of 2003, the Court notes that he was examined by an
otologist in May 2004 and received some medication. In any event,
given the fact that after his release in December 2005 the applicant
waited for another four years before seeking medical intervention in
respect of his hearing loss (see paragraph 46 above), the Court does
not consider that his condition during detention could be considered
as having reached the severity threshold for Article 3 to be called
into play.
- It
follows that the applicant’s complaint of the alleged
insufficiency and inadequacy of the medical care provided to him in
detention in respect of both his hypertension and hearing loss is
manifestly ill-founded and should therefore be declared inadmissible
under 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 claimed 100,000 euros (EUR) in respect of pecuniary damage
and EUR 1,000,000 in respect of non-pecuniary damage.
- The Government considered that there was no causal
link between the pecuniary damage claimed and the violations alleged.
They further considered the claim for non-pecuniary damage
unsubstantiated and excessive.
- The Court does not discern any causal link between
the violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR
6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 30,000 for costs and expenses.
- The
Government considered that the applicant had failed to demonstrate
that the costs claimed were reasonable and had actually been
incurred.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
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 applicant’s complaints under
Article 5 §§ 1, 3 and 4, as well as Articles 6 § 1 and
13, of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant’s
detention between 28 May 2003 and 22 December 2005;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the court hearings of 25
October and 23 December 2002 and the applicant’s inability to
effectively contest the lawfulness of his detention between 28 May
and 29 August 2003;
- Holds that there has been no violation of
Article 5 § 4 of the Convention in respect of the alleged lack
of an effective procedure at the applicant’s disposal for
judicial review of the lawfulness of his detention between 29 August
2003 and 22 December 2005;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the criminal
proceedings against the applicant;
- Holds that there has been a violation of Article
13 of the Convention in conjunction with Article 6 § 1 (length
of proceedings);
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros) in respect of non-pecuniary damage, to be converted into the
national currency of the respondent State at the rate applicable on
the date of settlement, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
