SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54825/00 
by Evgen NEVMERZHITSKY 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 25 November 2003 as a Chamber composed of

Mr J.-P. Costa, President
Mr A.B. Baka,

Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen, judges
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged with the European Court of Human Rights on 21 June 1999,

Having regard to the partial admissibility decision of 28 January 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Evgen Nevmerzhitsky, is a Ukrainian national, who was born in Kyiv in 1970 and currently resides there. He was formerly the manager of a branch of the Poltava Bank in Kyiv. The respondent Government are represented by Mrs Zoryana Bortnovska, the Agent of the Government of Ukraine before the Court.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The criminal proceedings brought against the applicant

On 28 September 1995 police officers seized 184,761 US dollars (USD) that had been stored by the applicant on the premises of the Poltava Bank in readiness for their sale to a customer, Y.G.L.

On 18 October 1995 the Investigative Division of the Main Department of the Ministry of Internal Affairs of Ukraine in Kyiv (“the Investigative Division”) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant.

On 8 April 1997 the Investigative Department initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case. On the same date an investigator from the Division decided that the applicant should be detained as a suspect pending the decision concerning the applicable preventive measure. He was accordingly placed in custody that day.

On 14 April 1997 an investigator from the Investigative Division charged the applicant with, inter alia, engaging in unlawful currency transactions (Article 80-2 of the Criminal Code of Ukraine, 1960 - hereafter the “CCU”), the theft of substantial amounts of currency (Article 86-1 of the CCU) and tax evasion (Article 148-5 of the CCU).

On 8 December 1997 and 2 March 1998 the applicant was additionally charged with an abuse of power, fraud and forgery.

From 15 January 1998 until 14 April 1998 the applicant lodged applications with the Investigative Department for a medical examination and challenged the appointment of the investigator. On 7 April 1998 the General Prosecution Service of Ukraine instructed the investigator to arrange for the applicant’s medical examination. The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by the Ministry of Health due to various diseases that he suffered from, including the skin infections of scabies and eczema.

On 13 March 1998 the investigation charged the applicant with the aforementioned offences.

On 8 September 1998 the investigation into the case was completed and the accused were allowed to inspect the case-file. On 9 August 1999 the accused finished their inspection.

On 9 August 1999 the criminal case-file was sent to the Prosecution Service of Kyiv for approval of the indictment.

On 13 August 1999 the Prosecution Service of Kyiv transmitted the case to the Kyiv City Court.

On 1 November 1999 the Kyiv City Court remitted the case to the Prosecution Service of Kyiv for an additional investigation (додаткове розслідування). On 5 November 1999 the Prosecution lodged a separate application (окреме подання) for an order to set aside the City Court ruling. On 16 December 1999 the Supreme Court of Ukraine partly granted the Prosecution’s application. Although it held that the case should be remitted for additional investigation, it specified that certain matters need not be further investigated since the information previously obtained was sufficient.

On 5 January 2000 a supplementary investigation into the case was finished and the applicant was allowed to inspect the file.

On 7 February 2000 the additional investigation was completed and the applicant was allowed to familiarise himself with the materials in the case-file.

On 22 February 2000 the preliminary investigation was reopened in order to conduct additional investigative acts.

On 30 October 2000 the Kyiv City Court ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and Article 80 of the CCU repealed. It also held that the applicant should remain in custody.

On 19 February 2001 the Kyiv City Court convicted the applicant of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months’ imprisonment, and ordered the confiscation of all his personal property. It acquitted him of offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion, and aggravated fictitious trading. On the basis of the Amnesty Law of 11 May 2000, and because the applicant had already been detained for two years, ten months and fifteen days, the Kyiv City Court decided to excuse him from serving the sentence. None of the parties appealed to the Supreme Court of Ukraine.

2.  The detention of the applicant

On 8 April 1997 an investigator of the Investigative Division decided that the applicant should be temporarily detained as a suspect (затриманий в якості підозрюваного) in accordance with Article 115 of the Code of Criminal Procedure (“the CCP”). He was accordingly placed in custody that day.

On 11 April 1997 the Prosecutor issued a warrant authorising the applicant’s arrest (санкцію на арешт) as a preventive measure pending trial (Article 155 of the CCP).

On 12 May 1997 the applicant applied to the Moskovsky District Court of Kyiv for orders to quash the warrant and release him. On 28 May 1997 the District Court rejected the applicant’s claims as unsubstantiated. It also held that the applicant’s detention was lawful.

As from 8 April 1997 until the 22 February 2000 the applicant was detained in the Temporary Investigative Isolation Unit of Kyiv Region (SIZO no. 1 of Kyiv Region).

The duration of the investigation and the applicant’s detention was extended on successive occasions: to six months on 29 May 1997 by the Prosecutor of Kyiv, to nine months on 1 October 1997 by the Deputy Prosecutor General of Ukraine, to twelve months on 18 December 1997 by the Deputy Prosecutor General of Ukraine and to fifteen months on 28 March 1998 by the Acting Prosecutor General of Ukraine.

On 12 April 1998 the Division investigator informed the applicant that the preventive measure of detention could be replaced by release on bail. The Prosecutor of Kyiv informed the applicant by a letter of 20 July 1998 that bail had been fixed in the sum of UAH 232,716. On 22 July 1998 that amount was remitted to the account of the Main Department of the Ministry of Internal Affairs in Kyiv by the UKRINBANK (the surety and the applicant’s former employer). On 19 August 1998 the Main Department returned the sum and refused to release the applicant on bail.

On 30 June 1998 the acting Prosecutor General of Ukraine extended the term of the investigation and of the applicant’s detention for another three months (until the 30 September 1998) bringing the total period to eighteen months.

On 1 November 1999 the Kyiv City Court refused to change the preventive measure, requiring the applicant to remain in custody. On 16 December 1999 the Supreme Court of Ukraine upheld that decision.

The applicant was detained during the Prosecution’s further investigation from 1 November 1999 onwards. On 22 February 2000, owing to the expiry of the maximum statutory period of detention, the Prosecution decided to release the applicant on his undertaking not to abscond. The applicant was released on 23 February 2000.

3.  Hunger-strike, force feeding and medical treatment of the applicant

The applicant went on hunger-strike from 13 April 1998 until 7 May 1998, consuming only water. On 23 April 1998 he was subjected to force feeding. The applicant discontinued his hunger strike on 14 July 1998.

On 1 December 1999 the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and, because of his continuing hunger-strike, was being forcibly fed.

Between 27 May 1997 and 7 February 2000 the applicant was examined on 61 occasion by doctors.

On 5 February 1998 the doctor of the Detention Centre diagnosed the applicant as having allergic dermatitis (алергійний дерматит).

On 8 April 1998 the doctor of the Detention Centre after examining the applicant diagnosed him as also suffering from streptococcal impetigo (стрептодермія) and chronic cholecystitis (хронічний холецистит).

On 2 June 1998 the doctor of the Central Medical Clinical Hospital of Kyiv found that the applicant had contracted disseminated microbe eczema (розповсюджена мікробна екзема).

On 14 and 23 July 1998 the applicant was diagnosed as having scabies (короста) and pyodermatosis (піодерматит)1. The applicant underwent medical treatment for scabies on 31 July 1998 in the medical unit of the Detention Centre.

The applicant continued his hunger strike between 10 January and 7 February 2000. During this period he was examined by a doctor on 18 occasions.

Following his release on 23 February 2000, the applicant was admitted to the Kyiv City Hospital from 24 February until 17 March 2000. He continued to receive medical treatment thereafter under the general supervision of a psychiatrist.

4.  Complaints to the Constitutional Court of Ukraine

On 2 February 2000 the applicant’s sister, on behalf of the applicant, lodged complaints with the Constitutional Court of Ukraine seeking to establish that it was unconstitutional to hold the applicant in custody when the maximum statutory term of detention had expired. She also petitioned the Constitutional Court for a ruling that Article 156 of the CCP, which allowed suspects to be detained while the case was being investigated, was unconstitutional. On 25 February 2000 the Secretariat of the Constitutional Court rejected his complaints, holding that it had no jurisdiction to consider them.

B.  Relevant domestic law

1.  Constitution of Ukraine of 26 June 1996

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.”

Article 55

“Human and citizens’ rights and freedoms are protected by the court.

Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers. 

... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. 

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

2.  The Code of Criminal Procedure of Ukraine, 1960 (as amended on 21 June 2001)

Article 148: Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or pursue criminal activities, and in order to ensure the execution of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues the criminal activities.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he shall be charged within 10 days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

Article 149: Preventive measures

“The preventive measures are as follows:

(1) a written statement undertaking not to abscond;

(2) personal surety;

(3) surety of a public organisation or labour collective;

(3-1) bail;

(4) remand in custody;

(5) supervision by the command of a military unit.

As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”

Article 150: Circumstances that shall be taken into account in choosing a preventive measure

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person’s age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.”

Article 156: Periods of detention during an investigation

“Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended:

(1) to four months - on an application approved by the Prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the Prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure; 

(2) to nine months - in cases of serious and especially serious crimes, on an application approved by the deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the regions, the cities of Kyiv and Sevastopol and Prosecutors assimilated thereto or by the same Prosecutor submitted for consideration to a judge of an appellate court;

3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine, his Deputy or by the same Prosecutor submitted for consideration to a judge of the Supreme Court of Ukraine;

In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the Prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure.

The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case or in a case joined to it or severed from it or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention.

The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure. 

In the event that the case is withdrawn from the court by a Prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the Prosecutor.

In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article.

In the event of expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article then, unless the period was extended pursuant to the procedure established by this Code, the body of inquiry, the investigator, or the Prosecutor shall be obliged to release the person from custody without delay.

Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall send notice to the person or body before whom the case is pending and to the Prosecutor supervising the investigation (Article 156 in the wording of Law no. 1960-12 of 10 December 1991, as amended by Laws nos. 2857-12 of 15 December 1992, 3351-12 of 30 June 1993; in the wording of Law no. 2533-III of 21 June 2001 – which entered into force on 29 June 2001).”

Article 236-3: The appeal against the prosecutor’s arrest warrant

“The detainee, his defender or legal representative may appeal against the prosecutor’s arrest warrant to the relevant district (city) court...

The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours upon its receipt.”

(Article 236-3 was excluded from the Code of Criminal Procedure on the basis of the Law of 21 June 2001 “on the introduction of changes and amendments to the Code of Criminal Procedure of Ukraine”).

3.  The Resolution of the Plenary Supreme Court of Ukraine of 30 September 1994 “on certain issues that emerge in the course of application by the courts of the legislation providing for appeal against the prosecutor’s arrest warrant”

“... in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused, and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody; nor the decision of the court (judge) to detain the defendant.”

(This resolution was annulled on the basis of the new Resolution of the Plenary Supreme Court of Ukraine of 25 April 2003 “on the practice of applying the preventive measure of detention by the courts and the prolongation of detention at the stages of inquiry and pre-trial investigation”).

4.  The Decree of the Ministry of Internal Affairs of Ukraine of 4 March 1992 No. 122 “on the approval of the instructions concerning the conditions of detention and force feeding of persons who refuse alimentation while in preliminary detention, penitentiary institutions and the medical-labour facilities” (extracts)

“...1.2. The head of the institution or the person, acting on his behalf, upon discovery of the detainee’s refusal to take food, must interview the detainee within 24 hours in order to document the reasons for the refusal; he also has to inform the authorities responsible for this person’s detention and the prosecutor supervising the execution of the judicial decisions in criminal cases and, in the event of serious grounds for refusal to take food, has to adopt relevant measures to satisfy the lawful demands of the detainee.”

...1.3. Within 24 hours from the refusal of the detainee to take food, the head of the institution or the person acting on his behalf, shall order the placement of the detainee in a separate cell, where he/she shall be held on a general basis, in isolation from other detainees and under constant supervision.

...1.4. The detainee shall be provided with breakfast, lunch and supper in accordance with the envisaged timetable and the established nutritional norms. In the event of refusal to take food, it has to be removed after two hours; this shall be noted in the register of the food taken by the detainee.

1.5. Within the time-period established by the administration of the institution, and taking into account particular circumstances, but not more than three days from the moment of the refusal to take food, the person has to undergo a compulsory medical examination, during which a doctor has to explain the negative consequences of the hunger strike to the detainee’s health. On-going and emergency medical treatment shall be provided to the detainee, unless there is a need to provide him/her with in-hospital treatment...

1.7. In the event that the refusal to take food is not a result of a disease or illness, the representatives of the institution must continuously explain to the person the harmful effect that a lack of food inflicts on the body.

1.9. The force feeding of a detainee on a hunger strike shall be a measure of last resort aimed at preserving life and may only be used where the educational work and other measures of influence have no result on the detainee, and his/her further refusals to take food are endangering his/her life.

The decision to force-feed shall be adopted by the head of the institution or the person acting on his behalf, on the basis of a written report by the medical commission establishing a life-threatening decrease in the state of health of a detainee on hunger strike...

The prosecutor supervising the lawfulness of the execution of judgments in criminal cases shall be informed about the decision to force-feed the detainee.

The detention centre’s doctor shall determine the length of time necessary to force-feed the detainee, taking into account his/her general state of health.

The doctor shall decide on the content of the feeding substance in accordance with the daily food ration composed from different products.

The doctor shall make a note at the time of the force feeding in the medical file of the detainee on a hunger strike, mentioning the date, components and quantity of the feeding substance; the surname and the rank of a person who administered the force feeding shall also be noted...

2. The procedure for force feeding of the detainee refusing to take food

2.1. The force feeding shall be administered in the presence of one of the administrators of the institution, the doctor, a member of the medical staff and the necessary number of junior inspectors.

Before the beginning of the force feeding the doctor shall explain to the detainee, the risks that threaten his/her health and the necessity to take food.

If the detainee refuses the force feeding, then he/she can be handcuffed, and the junior inspectors shall hold him in such a position as necessary for this procedure.

The force feeding shall be conducted by a member of the medical staff under the doctor’s supervision, taking into account all the measures necessary to avoid possible injuries and accidents. In the course of this procedure the mouth of the detainee shall be opened and held by the mouth-widener (роторозширювач).

The medical tube with the funnel on the free end, cooled down after having been boiled, but soft, has to be placed through the mouth opening and the pharynx into the alimentary canal (oesophagus). In the course of this procedure the doctor has to make sure that the tube does not get into the trachea. If the position of the tube is correct the member of the medical staff shall pour into the can a small quantity of cooled boiled water and then the feeding substance.

2.2. The medical staff must have with them necessary medical supplies and medicines for providing the emergency medical aid in the event of injuries that might occur in the course of force feeding.

2.3. If the state of health of the detainee on hunger strike improves, the force feeding shall be suspended and this shall be noted in the medical file of the detainee; a reasoned conclusion shall be drawn up by a doctor.”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to inhuman or degrading treatment or punishment whilst remanded in custody. In particular, the applicant complains that the conditions of his detention were degrading. He also alleges that he was not provided with adequate medical treatment and assistance while in detention and on hunger strike. He also alleges that his force feeding and his incarceration in an isolation cell of the Detention Centre contravened the guarantees of Article 3 of the Convention.

The applicant next complains under Article 5 §§ 1(c) and 3 of the Convention that his detention on remand was unlawful once the maximum statutory period of detention had expired, and that its overall length was unreasonable.

THE LAW

1.  Government’s preliminary objections to admissibility

(a)  The Court’s jurisdiction ratione temporis

The Government referred to the Court’s constant case-law limiting its competence to examine applications to facts that took place after the Convention’s entry into force in respect of a Contracting Party to the Convention.

The Court observes that, in accordance with generally accepted principles of international law, Contracting Parties are only bound by the Convention in respect of events occurring after it has entered into force in respect of that State. It notes that the date on which the Convention entered into force in respect of Ukraine was 11 September 1997, whereby the declaration of Ukraine accepting the right of individual petition took effect. It also notes that some of the events referred to in the application in the instant case occurred prior to that date.

The Court first recalls that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 23, § 9). Thus, in the present case, the applicant’s detention on remand began on 8 April 1997 when he was arrested, and ended on 23 February 2000, when he was actually released from custody by the decision of the Kyiv City Prosecution Service of 22 February 2000. The total period of the applicant’s detention pending trial was therefore two years, ten months and fifteen days.

As the period between 8 April 1997 and 11 September 1997 lies outside its jurisdiction ratione temporis, the Court can only consider the period of two years, five months and twelve days, which elapsed between that date and the applicant’s release from custody on 22 February 2000. However, it may take into account the fact that by 11 September 1997 the applicant had already been in custody for five months and three days (see Kalashnikov v. Russia, no. 47095/99, § 111, ECHR 2002-VI; Sovtransavto Holding v. Ukraine, no. 48553/99, §§ 56-58, ECHR 2002-VII).

(b)  Exhaustion of domestic remedies

(i)  Submissions of the parties

The Government maintained that the applicant has not exhausted the domestic remedies available to him under Ukrainian law. In particular, they mentioned that the applicant has not availed himself of the remedies guaranteed by Article 236-3 of the Code of Criminal Procedure (the “CCP”), which guarantees that the warrant issued by the Prosecutor could be appealed to the first-instance court in the course of the preliminary investigation in the case. The Government pointed out that the applicant had only challenged the warrant of the Prosecutor issued for his arrest on 11 April 1997. However, he did not complain about the Prosecutor’s renewed warrants of 29 May 1997, 1 October 1997, 18 December 1997, 28 March 1998 and 30 June 1998. The applicant’s doubts as to the effectiveness of such a remedy cannot serve as an excuse for not availing himself of its protection (see, no. 19819/92, Commission decision of 5 July 1994, D.R. 78-B, p. 93; Khomyak v. Russia (dec.), 15 January 2000).

The Government also mentioned Article 55 of the Constitution of Ukraine and the Resolution of the Plenary Supreme Court of Ukraine of 30 September 1994, which allow the individual concerned to appeal to the court against the allegedly unlawful acts of prosecution officials. The Government further stressed that, if the applicant had appealed, the court would not have refused his appeal. Furthermore, the Government provided copies of the decisions of the Ternopil Regional Court of Appeal of 20 February 2003, where the court of appeal quashed a previous warrant issued by the first instance court and found that the persons concerned should be released from custody. The Government also referred to the case-law of the Court concerning Ukraine (see Makarov v. Ukraine, no. 59032/00, decision of 28 May 2002), stating inter alia that an applicant is required to exhaust the domestic remedies available to him under Ukrainian law in accordance with Article 35 § 1 of the Convention.

The applicant contested the arguments of the Government. In particular, he stated that he had exhausted domestic remedies as he had applied to the Moskovsky District Court of Kyiv against his initial arrest in 1997. Furthermore, he maintained that he had complained about the unlawfulness of his detention to the Prosecution Service that investigated his case. However, the Prosecution responded that the decision to detain him was not subject to appeal.

(ii)  The Court’s assessment

The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, judgment of 29 April 2003).

The Court emphasises that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. The rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant. It must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected in order to exhaust domestic remedies (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 69).

The Court recalls its case-law, according to which the decisive question in assessing the effectiveness of a remedy is whether the applicant can raise the complaint at issue before the domestic courts by claiming specific redress. In other words, whether a remedy exists that could answer his complaints by providing a direct, speedy, and not merely indirect, protection of the rights guaranteed in the Convention (see Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 16, § 29).

Applying these considerations to the instant case, the Court finds that the remedy under Article 236-3 of the CCP, available at the material time of the applicant’s detention, only concerned complaints against the arrest warrant issued by the Prosecutor or investigator, but not the decision of the investigator, the body of inquiry, or the court with regard to the applicable preventive measures or their prolongation (see the Resolution of the Plenary Supreme Court of Ukraine of 30 September 1994 “on certain issues that emerge in the course of application by the Courts of the legislation providing for appeal against the arrest warrant issued by the Prosecutor”). The Court considers therefore that this part of the Government’s objection should be rejected as the applicant was unable to challenge before a court, pursuant to Article 236-3 of the CCP referred to by the Government, the preventive detention measure applied to him.

As to the Government’s reference to Article 55 of the Constitution of Ukraine, the Court considers that this remedy did not possess the necessary effectiveness, as the applicant could not claim under that provision, which is of a very general nature, specific redress for his allegedly unlawfully prolonged detention. Furthermore, the Government failed to show how this remedy could provide a direct, speedy, and not merely indirect, protection of the rights guaranteed by Article 5 of the Convention. As to the domestic case-law referred to by the Government, the Court finds that it is not relevant as it does not concern a similar situation at the material time of the applicant’s detention, but gives an example of the present-day approach of the Ternopil Regional Court of Appeal when considering detention complaints. Accordingly, the Court concludes that the applicant’s complaints under Article 5 of the Convention cannot be rejected for non-exhaustion of domestic remedies.

2.  Complaints under Article 3 of the Convention

The applicant complained about his inhuman or degrading treatment or punishment whilst remanded in custody. In particular, he alleged that the force feeding to which he was subjected and the lack of medical treatment, as well as the conditions of detention, were such as to fall within the ambit of Article 3 of the Convention, which in so far as relevant provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

(a)  Preliminary considerations

The Court notes that certain of the applicant’s complaints under this head are based on events which took place more than six months before the date of introduction of his application, namely 21 June 1999. This is true in particular of the first episode of force feeding, which was discontinued on 14 July 1998. Accordingly, any such complaints based on events occurring before 21 December 1998, and in so far as they cannot be considered continuing complaints, must be rejected in application of Article 35 §§ 1 and 4 for non-compliance with the six-months’ rule.

(b)  Case-law of the Court concerning the merits of the complaints under Article 3 of the Convention

As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among many other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 69, ECHR 1999-IX, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).

The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. However, the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, mutatis mutandis, Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 15, § 30; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 39, § 100; V. v. the United Kingdom cited above, § 71).

Measures depriving a person of his liberty may often involve such an element. However, it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment.

Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.).

(c)  Force feeding of the applicant

The Government submitted that the applicant’s suffering was solely the result of his own decision to commence a hunger strike. He was repeatedly informed of the grave consequences which might follow if he persistently refused to accept food and liquids. He had stated that the strike was in protest at the refusal of the courts to release him on bail. He also demanded that certain investigative acts, such as an independent forensic audit, be performed in his case. The Government submitted that the applicant’s suffering did not attain the level of severity of inhuman or degrading treatment.

The Government further rejected the applicant’s allegation that his medical treatment and force feeding during the hunger strike were inhuman and degrading. It is not true that the applicant was treated by unqualified personnel and other detainees. While it is true that, due to the economic problems in the country, all medical institutions experience difficulties, strict professional control exists and the medical staff at detention centres are well qualified, maintaining the quality of medical care provided to detainees. Furthermore, all necessary facilities were available to the applicant in detention. The applicant’s health was closely monitored by medical doctors, and he was taken to a hospital for a full examination. He was forcibly fed only when this became necessary, by medical personnel, in the presence of two detention centre employees, with the use of appropriate medical equipment and substances. Finally, the force feeding was administered according to a procedure prescribed by law and internal prison instructions (see for instance the Instruction of the Ministry of the Interior as to the force feeding of the persons held in detention).

The applicant replied that the inhuman and degrading treatment complained of related to the violent and unprofessional way in which he was forcibly fed. In particular, liquid food was poured into his stomach by unqualified personnel, sometimes by another detainee, through a dirty rubber hose. He also alleged that no account was taken of his state of health.

He further maintained that while he was on hunger strike he was put in the isolation unit of the Detention Centre to force him to discontinue his hunger strike. In order to get out of the isolation unit he had to injure his wrists so that he would receive relevant medical attention. He further maintains that he was subjected to force feeding while he was on hunger strike throughout this period. His state of health also substantially deteriorated as he lost a lot of weight and at the end of the hunger strike he weighed only forty kilos.

The Court recalls that the first episode of force feeding is inadmissible under the six-months’ rule. As to his other complaints which are not inadmissible on this ground or which cannot be regarded as referring to a continuing situation, the Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible have been established.

(d)  Allegations about a lack of adequate medical treatment and assistance

The Government maintained that the treatment given to the applicant was adequate, was provided to him frequently and corresponded to the needs of the applicant at the time.

The applicant argued that the medical examinations were not conducted by qualified doctors. Furthermore, the medical treatment was inadequate. There was a lack of prescription drugs in the detention centre, so his relatives had to provide him with the necessary medicines. However, he was not allowed to receive them because he was on hunger strike.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(e)  Conditions of detention

The Government maintained that the applicant has not provided to the Court relevant submissions, examples and evidence that could serve as a valid ground to consider that the conditions of his detention were in breach of Article 3 of the Convention.

The applicant maintained that his skin infections were caused by the poor conditions of detention, a lack of sunlight, ventilation and outdoor walks, and poor conditions of hygiene in the detention centre.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The length and lawfulness of the applicant’s detention

The applicant alleges that his detention was unlawful once the maximum statutory period of detention had expired and he had familiarised himself with the materials of the case-file. He further complains about the allegedly unreasonable length of his detention. He invokes Article 5 §§ 1(c) and 3 of the Convention, which in so far as relevant provide:

“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; ...”

“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.”

(a)  Lawfulness of detention

The Government maintained that the applicant was detained lawfully, in accordance with the warrant issued by the Prosecutor which was prolonged on various occasions. They mentioned that the main cause of the applicant’s lengthy detention was the remittal of the case for an additional investigation on the basis of the motion filed by the applicant’s advocate.

The applicant disagreed, stating that the maximum statutory period of detention had expired and no new authorisation was issued for his detention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(b)  Length of detention

As to the length of detention, the Court refers to its previous findings and recalls that it had lasted two years, ten months and fifteen days in total. However, five months and three days from this period relate to the period outside the Court’s competence ratione temporis.

The applicant maintained that it was not necessary to take him into custody and keep him there for an extended period of time, as there was no proof that he was trying to obstruct the establishment of the truth in the case. Furthermore, his place of residence and work were in Kyiv, so he could not possibly have disappeared or absconded. The reasons given by the authorities to justify his detention were not relevant or sufficient.

He also submitted that his case was not particularly complex, as established by the Kyiv City Court on 1 November 1999. The case file contained fifty two volumes that were made up of his complaints to the various authorities, including the complaints about the poor conditions of his detention and his applications for release. The investigation involved the questioning of a number of witnesses and there were two civil plaintiffs in the case. Finally, the applicant argued that the proceedings were not conducted with due diligence by the authorities. His lengthy detention was occasioned by the poor quality of the investigation, its unwarranted attempts to increase the number of counts in the indictment and a lack of proper control over its activities by the supervising bodies. In this respect, he referred to the findings of the Kyiv City Court of 1 November 1999 and the Supreme Court of Ukraine on 16 December 1999 who remitted the case for additional investigations.

The Government pointed out that the applicant was detained on the ground that he could have obstructed the investigation into the truth. They further regarded the period of the applicant’s pre-trial detention as reasonable in view of the complexity of the case, as it involved economic crimes, fifty two volumes in the case-file and a large number of witnesses and victims.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints regarding the lawfulness and length of his detention on remand, his conditions of detention, the alleged lack of adequate medical treatment and, in so far as it falls within the six months’ rule, the complaint regarding force feeding;

Declares inadmissible the remainder of the application.

T.L. Early J.-P. Costa 
 Deputy Registrar President

1.  Purulent skin disease.


NEVMERZHITSKY v. UKRAINE DECISION


NEVMERZHITSKY v. UKRAINE DECISION