27.02.2019 | Автор: Зеров Костянтин
Задать вопрос автору
Присоединяйтесь к нам в социальных сетях: telegram youtube

«Бекетов проти України»: Факт огляду особи лікарем та призначення лікування ще не означає, що надана особі медична допомога була адекватною (ст. 3, ст. 13 Конвенції, заява № 44436/09, від 19.02.2019 р.)

Фабула судового акта: Заявник, громадянин України Ю.О. Бекетов, стверджував, що зазнав жорстокого поводження з боку працівників міліції, що умови його утримання під вартою були неналежними, що йому не було надано адекватної медичної допомоги під час позбавлення волі. Заявник також скаржився на відсутність ефективних національних засобів правового захисту щодо розслідування зазначених скарг.

Заявник стверджував, що був побитий міліціонерами, які намагалися змусити його зізнатися у вчиненні злочинів. Один з міліціонерів бив Заявника в живіт, який було прооперовано; після побиття Заявник почав страждати від постійного болю. Заявник зізнався у вчиненні злочинів, після чого був оглянутий лікарями; під час огляду було виявлено синець під оком. Згодом лікарі медичної допомоги діагностували у Заявника контузію черевної тканини та інші ушкодження.

Захисник Заявника звернувся до прокуратури зі скаргою на жорстоке поводження з боку співробітників міліції. Судово-медична експертиза не встановила у Заявника відповідних травм, а прокуратура відмовила у порушенні кримінальної справи у зв'язку з відсутністю складу злочину. Скарги Заявника неодноразово направляли на дорозслідування, проте у порушенні кримінальної справи було відмовлено. Після набрання чинності Кримінальним процесуальним кодексом України було порушено кримінальне провадження за скаргами Заявника на жорстоке поводження, проте згодом провадження було припинено за відсутністю складу злочину.

Під час перебування у СІЗО Заявник неодноразово звертався до адміністрації з приводу поганого самопочуття, проте огляд було здійснено лише після того, як Заявника забрала шкидка допомога. У подальшому Заявник неодноразово потрапляв у лікарню швидкої допомоги. Стан здоров`я Заявника вимагав госпіталізації, проте вона так і не була здійснена. Через деякий час Заявника було поміщено у тюремну лікарню та прооперовано.

Заявник стверджував, що він утримувався в СІЗО в неналежних умовах, які виявлялся у нестачі денного світла, відсутності матраців і постільної білизни, поганому і нерегулярному харчуванні. Заявника також не забепечували харчуванням та питною водою у дні засідань.

ЄСПЛ наголосив, що у випадку перебування особи під контролем влади (в тому числі під час позбавлення волі) існує презумпція факту завдання травм, а обов`язок надання задовільних і переконливих пояснень, заперечень покладається на державу-відповідача. ЄСПЛ звернув увагу на те, що будь-яке застосування фізичної сили, яке не є строго необхідним з огляду на поведінку особи, принижує людську гідність і є порушенням права, закріпленого в статті 3 Конвенції. ЄСПЛ відзначив, що відсутні докази про наявність у Заявника виявлених пізніше травм до перебування у відділку міліції. З огляду на ненадання Урядом належних заперечень, а також зважаючи на характер травм, ЄСПЛ дійшов висновку, що Заявника було травмовано в той час, як він перебував у відділку, під контролем міліції. З огляду на вищевказане, ЄСПЛ дійшов висновку про порушення матеріального аспекту статті 3  Конвенції.

ЄСПЛ також встановив порушення процесуального  аспекту статті 3 Конвенції. щодо тривалого та неефективного розслідування скарг заявника про жорстоке поводження з боку працівників міліції. ЄСПЛ відзначив, що не було вжито серйозних заходів для розслідування скарг Заявника, а тривалість розслідування була невиправданою (близько шести років).

ЄСПЛ наголосив, що сам по собі факт огляду особи лікарем та призначення лікування не означає, що надана особі медична допомога була адекватною. Держава також повинна гарантувати, що ведеться спостереження за станом здоров'я особи і надається своєчасне лікування, що поставлені діагнози є оперативними і точними, що контроль є систематичним і охоплює комплексну терапевтичну стратегію. ЄСПЛ відзначив, що операцію було зроблено Заявнику із затримкою на рік і лише після критичного погіршення стану його здоров'я. ЄСПЛ дійшов висновку, що надана Заявнику медична допомога не була адекватною. В результаті неадекватності медичної допомоги, Заявник переніс страждання або труднощі, що перевищують неминучий рівень страждань, властивий триманню під вартою – таким чином, ЄСПЛ встановив порушення статті 3 Конвенції.

ЄСПЛ також встановив порушення статті 3 Конвенції. з огляду на неналежні умови тримання Заявника під вартою, оскільки Заявник мав у своєму розпорядженні менше 3 м. кв. мінімально гарантованого особистого простору, не мав змоги бувати на свіжому повітрі, перебував у антисанітрних умовах.

ЄСПЛ встановив порушення статті 3 Конвенції., оскільки Уряд не довів, що в дні засідань Заявни отримував їжу і питну воду.

ЄСПЛ дійшов висновку, що було порушено статтю 13 Конвенції у зв'язку з відсутністю ефективних і доступних засобів правового захисту відповідно до національного законодавства для розслідування скарг Заявника щодо відсутності адекватної медичної допомоги, неналежних умов тримання під вартою, незабезпечення їжею та водою у дні засідань.

Інші скарги Заявника було відхилено.

Аналізуйте судовий акт: «Буїд проти Бельгії» [ВП] (Bouyid v. Belgium [GC]), заява № 23380/09

«Савицький проти України» (Savitskyy v. Ukraine), заява № 38773/05

«Каверзін та інші проти України» (Kaverzin v. Ukraine), заява № 23893/03

«Муршич проти Хорватії» [ВП] (Muršić v. Croatia [GC]), заява № 7334/13

«Гумматов проти Азербайджану» (Hummatov v. Azerbaijan), заяви № 9852/03 та № 13413/04

 

FOURTH SECTION

CASE OF BEKETOV v. UKRAINE

(Application no. 44436/09)

JUDGMENT

STRASBOURG

19 February 2019

This judgment is final but it may be subject to editorial revision.

In the case of Beketov v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 29 January 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44436/09) 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 Yuriy Oleksiyovych Beketov (“the applicant”), on 7 August 2009.

2. The applicant, who had been granted legal aid, was represented by Ms Olga Belyayeva, a lawyer practising in Dnipro. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3. The applicant alleged under Article 3 of the Convention that he had been ill-treated by the police, that no effective investigation into his complaints had been carried out, that the material conditions of his detention had been poor, that he had not been provided with food and water on days when there had been hearings, and that he had had no access to adequate medical treatment in detention. He also complained under Article 13 of the Convention of the lack of effective domestic remedies in respect of the above complaints.

4. On 5 June 2013 the application was communicated to the Government. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1970 and lives in Mankivka.

6. On 2 April 2007 the applicant underwent surgery in connection with an umbilical hernia (exomphalos).

A. The applicant’s arrest, alleged ill-treatment by the police, and ensuing investigation

7. According to the applicant, on 9 February 2008 the police arrested him in Vinnytsya on suspicion of abduction and murder. On the same day he was transferred to Kyiv and placed in detention in a cell of the Shevchenkivskyy district police station.

8. According to the Government, the applicant was arrested in Kyiv on 10 February 2008 on suspicion of abduction and murder, and on the same day he was placed in detention in a cell of the Shevchenkivskyy district police station.

9. According to the applicant, between 10 and 16 February 2008 he was beaten by police officers who tried to force him to confess to the abduction and the murder. In particular, Officer G., the first deputy head of Kyiv Shevchenkivskyy district police station, kicked the applicant in the face and abdomen, injuring the area where he had had the operation for his umbilical hernia (see paragraph 6 above). After the beating, the applicant started suffering from constant pain in his abdomen.

10. On 16 February 2008 the applicant confessed to the murder and the abduction and signed several documents which were undated. On the same day the police transferred him to the Kyiv Temporary Detention Facility (hereinafter, “the ITT”). The ITT medical staff examined the applicant on the same day and noted that he had a bruise under his right eye.

11. According to the applicant, on 19 February 2008 the Kyiv Pre-trial Detention Centre (hereinafter, “the SIZO”) administration refused to admit him because of his poor state of health. This was the second time that the SIZO administration refused to admit him (see paragraph 39 below). The applicant was sent back to the ITT and the ITT staff called an ambulance, which transported him to the Kyiv Medical Emergency Hospital (“the Emergency Hospital”). According to a certificate issued by the Emergency Hospital, the applicant stayed there from 20 to 25 February 2008 and received treatment for “contusion to the abdomen and facial tissue”.

12. On 26 February 2008 the applicant was placed in the SIZO. He was examined by a SIZO doctor, who diagnosed him with a “post-operative condition” following the operation on his umbilical hernia in 2007.

13. On 16 May 2008 the applicant’s defence lawyer complained to the prosecutor’s office regarding the applicant’s ill-treatment by the police officers of the Kyiv Shevchenkivskyy district police station between 10 and 16 February 2008.

14. On 24 June 2008 the investigator dealing with the criminal case against the applicant ordered a forensic medical expert to establish the injuries the applicant had sustained between 9 and 16 February 2008. The forensic medical expert examined the applicant on 4 July 2008 and did not find any injuries on him which could have been inflicted during that period. The expert noted that a liquid was leaking from the applicant’s navel, and recommended that he be examined by a surgeon.

15. On 11 August 2008 the applicant’s lawyer submitted a petition to the prosecutor’s office in which he stated that the applicant had been beaten by Officer G., the first deputy head of the Kyiv Shevchenkivskyy district police station.

16. On 16 September 2008 the investigating officer of the Kyiv Shevchenkivskyy district prosecutor’s office refused to institute criminal proceedings in relation to the applicant’s ill-treatment complaints on the grounds that there were no constituent elements of an offence. The investigating officer based his decision on statements of the investigator and the police officers dealing with the initial investigative activities concerning the applicant. Those questioned denied that the applicant had been ill‑treated.

17. On 29 September 2008 the applicant’s defence counsel lodged a complaint with the Kyiv City public prosecutor against the decision of 16 September 2008.

18. On 16 October 2008 the Kyiv City public prosecutor’s office considered that there were no legal grounds for quashing the decision of 16 September 2008 (see paragraph 16 above).

19. On 18 November 2008 the Kyiv Shevchenkivskyy District Court (hereinafter, “the local court”) quashed the decision of 16 September 2008. It held that, in the course of the inquiry, the investigating officer had failed to question the applicant and Officer G., the police officer whom the applicant had pointed out. The local court also found that the investigator had failed to append to the case file the results of the forensic examination of the applicant’s injuries which his lawyer had referred to in the application of 11 August 2008 (see paragraph 15 above).

20. On 19 December 2008, following an inquiry into the applicant’s ill‑treatment complaints, the prosecutor’s office refused to institute criminal proceedings against the police officers because there were no constituent elements of an offence. In the course of the above inquiry, Officer G. was questioned. He said that he had not taken part in the applicant’s arrest or in any other investigative activities relating to him.

21. On 1 December 2009 the local court quashed the above decision and remitted the case file for an additional inquiry. The local court noted that the investigating officer had failed to comply with the instructions it had given in the decision of 18 November 2008 (see paragraph 19 above). In particular, the investigating officer had not questioned the applicant and had failed to provide any substantiation for his decision of 19 December 2008 (see paragraph 20 above).

22. On 30 January 2010, following an additional inquiry into the applicant’s ill-treatment complaints, the prosecutor’s office refused to institute criminal proceedings against the police officers because there were no constituent elements of an offence. In the course of the above inquiry, Officers О., L., Psh., and S., were additionally questioned and they denied physically or psychologically coercing the applicant into making a confession.

23. On 18 May 2010 the local court quashed the above decision and remitted the case file for an additional inquiry. The court noted that the instructions it had given in the decisions of 18 November 2008 and 1 December 2009 (see paragraphs 19 and 21 above) had not been followed by the investigating officer.

24. On 23 August 2010, following an additional inquiry into the applicant’s complaints, the prosecutor’s office refused to institute criminal proceedings against Officer G., the person who had allegedly ill-treated the applicant (see paragraph 9 above), because there were no constituent elements of an offence. In the course of that additional inquiry, the applicant was questioned and he reiterated his account of the events relating to the ill‑treatment. The investigating officer concluded that there was no evidence proving Officer G.’s involvement in those events.

25. On 5 December 2010 and 30 March 2011 the applicant lodged petitions with the Prosecutor General of Ukraine in which he reiterated,inter alia, that he had been ill-treated by Officer G. and that the investigation into his complaints in that respect had been ineffective.

26. On 17 January 2011 a superior prosecutor quashed the decision of 23 August 2010 (see paragraph 24 above) and remitted the case file for an additional inquiry.

27. On 12 April 2011, following an additional inquiry into the applicant’s complaints, the investigating officer refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. In the course of the above inquiry, the investigating officer questioned Officer Ovs., who had been on duty at the time of the applicant’s arrest. The officer denied that there had been blood on the applicant’s body in the stomach area. The investigating officer also noted that the applicant had not raised any complaints either during his time at the police station or after his transfer to the Kyiv SIZO. On 30 March 2012 the local court quashed that decision and remitted the case file for an additional inquiry.

28. On 28 June 2012, following an additional inquiry, the prosecutor’s office refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. The investigating officer came to the conclusion that it was impossible to question the people who had been at the police station with the applicant in February 2008. On an unspecified date that decision was quashed and the case file was remitted for an additional inquiry.

29. On 7 September 2012, following an additional inquiry, the investigating officer refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. On 17 September 2012 a superior prosecutor quashed that decision and remitted the case file for an additional inquiry.

30. On 27 September 2012, following an additional inquiry into the applicant’s complaints regarding ill-treatment, the prosecutor’s office refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. In the course of the inquiry, the inspector on duty at the material time, Inspector Ag., was questioned and stated that he didn’t remember whether he had seen the applicant.

31. On 7 May 2013 the local court quashed the decision of 27 September 2012 (see paragraph 30 above) and remitted the case file for an additional inquiry. The court held that the investigating officer had failed to interrogate and/or properly analyse the statements of:

- the people who had been detained with the applicant in the cell at the Kyiv Shevchenkivskyy district police station in February 2008;

- the ITT and SIZO staff, in relation to the applicant’s alleged ill‑treatment and the SIZO’s alleged refusal to admit him after the court had ordered his arrest;

- the medical personnel from the emergency service who had provided the applicant with medical assistance in February 2008;

- the surgeon from Buchanska Prison Hospital who had performed an operation on the applicant on 20 January 2010;

- the police officers who had arrested the applicant in Vinnytsya on 9 February 2008.

32. On 21 May 2013 the information about the physical injuries inflicted on the applicant was entered into the Unified Register of Pre-Trial Investigations and the respective pre-trial investigation started, in accordance with the provisions of the new Code of Criminal Procedure.

33. On 27 June 2013, following the results of the pre-trial investigation, the prosecutor’s office issued a decision to terminate the criminal proceedings because there were no constituent elements of an offence.

34. On 4 July 2013 a superior prosecutor quashed the above decision, holding that the investigating officer had failed to follow the instructions given by the local court in its decision of 7 May 2013 (see paragraph 31 above).

35. On 5 July 2013 the investigating officer questioned S., who had been detained with the applicant in the ITT cell. The witness stated that he did not remember the applicant being beaten.

36. On 29 August 2013, following the results of the investigation, the prosecutor’s office issued a decision to terminate the criminal proceedings because there were no constituent elements of an offence. On 18 February 2014 the local court upheld that decision.

37. On 15 April 2014 the Kyiv City Court of Appeal quashed the decision of the investigating officer of 29 August 2013 and the decision of the local court of 18 February 2014 (see paragraph 36 above) and remitted the case file for a pre-trial investigation. The court held that the investigating officer had failed to comply with the instructions given by the local court in its decision of 7 May 2013 (see paragraph 31 above), and in particular had failed to establish the origin of the injuries sustained by the applicant in February 2008.

38. The parties did not submit information about further developments in the case.

B. The applicant’s detention and the medical assistance provided to him

39. Meanwhile, on 13 February 2008 the local court had ordered the applicant’s detention on remand and ordered that he be transferred to the SIZO. As indicated before (paragraph 11 above), according to the applicant, the SIZO administration refused to admit him because of his poor state of health. The police then transported the applicant back to the Shevchenkivskyy district police station.

40. On 16 February 2008 the applicant was placed in the ІТТ (see paragraph 10 above). As a result of a medical examination, a bruise was found under his right eye. It was classified as a minor physical injury.

41. Following a deterioration in the applicant’s state of health, the ITT staff called an ambulance, which transported him to the Emergency Hospital. According to a certificate issued by the Emergency Hospital, the applicant stayed in that facility from 20 to 25 February 2008 and received treatment for “contusion to the abdomen and facial tissue” (see paragraph 11 above).

42. On 26 February 2008 the applicant was transferred from the ITT to the SIZO. As indicated in paragraph 12 above, upon his arrival he was examined by a SIZO doctor, who diagnosed him with a post-operative condition following his umbilical hernia operation in 2007 (see paragraph 6 above).

43. According to the applicant, on 29 February, 5, 10, and 16 March 2008 he complained to the SIZO staff of constant pain in his abdomen. The SIZO doctors examined him and established that the pain was due to a post-operative navel fistula. On 21 March 2008 he was examined by a SIZO general practitioner who gave him an anaesthetic. Between 13 May and 2 July 2008 the applicant stayed in the SIZO medical unit and was treated with the following: lactulose, aloe, fluconazole, ascorbic acid, and Captopril. His navel injury was treated with hydrogen peroxide, vitamins В1 and В6, Thiotriazolin, Levomekol (an ointment), Riboxin, and angiotensin-converting enzyme (ACE). After being treated, he was discharged and placed in a cell.

44. On 13 June 2008 the applicant was examined by a surgeon from the Emergency Hospital, who diagnosed a suture sinus (a type of wound complication) following the umbilical hernia operation. He recommended that a bandage be applied to the applicant’s navel area, and also recommended that he be treated with antiseptics, antibiotics and have elective surgery. The surgeon noted that the applicant did not need urgent inpatient treatment, and the applicant was returned to the SIZO on the same day.

45. On 22 October 2008 the applicant was examined in the SIZO by another surgeon, who noted that he did not need inpatient treatment or an urgent operation in connection with his navel fistula.

46. From 26 November to 15 December 2008 the applicant had examinations at the Emergency Hospital in connection with the constant pain in his abdomen. He was diagnosed with omphalitis (inflammation of the navel and the surrounding area) and a suture sinus following the umbilical hernia operation in 2007 (see paragraph 6 above). He was also diagnosed with: ischemic heart disease, myocardial cardiosclerosis, category II hypertension, hypertonic crises of 27 November, 1 and 4 December 2008, category I cardiac failure with cephalgia phenomena, asthenoneurotic syndrome, discirculatory encephalopathy, and chronic acute cholecystopancreatitis. The applicant received the following treatment: antispasmodic drugs, hepatoprotectors, antibiotics, biocatalysts, antihypertensive drugs (inhibitors, angiotensin-converting enzyme, beta-blockers, diuretics), and bandages on his umbilical area. On 5 December 2008 and 30 January 2009 the surgeon from the Emergency Hospital recommended that the applicant have elective surgery on the fistula and continue with the care and treatment of his symptoms under the surgeon, neuropathologist and cardiologist at the SIZO medical unit.

47. Between 9 February and 10 April 2009 the applicant stayed in the SIZO medical unit. He was diagnosed with and received treatment for: omphalitis, a urachal cyst, a navel fistula and suture sinus, ischemic heart disease, encephalopathy and an exacerbation of his chronic pancreatitis. The treatment consisted of oral medication and the application of antiseptic to the applicant’s navel area.

48. On 6 and 7 May 2009 the applicant was examined by the SIZO cardiologist, neuropathologist and surgeon. He was diagnosed with a urachal cyst, a ligature fistula and category II hypertension. He was prescribed outpatient treatment for his symptoms.

49. On 31 July 2009 the SIZO surgeon recommended that the applicant have an operation on the fistula, to be performed in a public hospital.

50. On 4 August 2009 the SIZO informed the applicant’s wife that the operation to remove his navel fistula would be arranged as soon as the court dealing with the criminal case against him allowed him to be transferred to an outside medical facility.

51. On 15 August 2009 the applicant was examined by the SIZO therapist. He was diagnosed with a urachal cyst, a ligature fistula, and category II hypertension. It was recommended that he continue with the prescribed outpatient treatment.

52. On 24 September 2009, during hearings at the Kyiv City Court of Appeal, an ambulance was called for the applicant. The ambulance team suggested that the applicant had peritonitis, and recommended that he be hospitalised urgently. According to the ambulance team report, the person in charge of the prison escort refused to allow him to be hospitalised. After the hearing, the applicant was taken back to the SIZO medical unit. He remained in that unit until 8 October 2009 and was treated for his navel fistula and inflammation of the navel. He received oral medication and antiseptic was applied to his navel area.

53. On 29 September 2009 the applicant was transported to the Emergency Hospital in connection with the constant pain in his abdomen. A duty surgeon and a supervising surgeon diagnosed him with omphalitis with a small amount of purulent discharge. The doctors did not prescribe any emergency operation, but recommended that bandages be applied, with Levomekol and Ceftriakson. On the same date the applicant was returned to the SIZO.

54. Between 24 September and 8 October 2009 the applicant remained in the SIZO medical unit, where he received the necessary treatment. He was discharged with a recommendation that his health be further monitored by the therapist and the surgeon of the SIZO medical unit.

55. On 30 October 2009 the Court granted the applicant’s request under Rule 39 of the Rules of the Court and indicated to the Government that he should be placed in a medical facility where he could receive appropriate medical treatment.

56. On 4 November 2009 the SIZO administration proposed to place the applicant in the Emergency Hospital. The applicant refused that proposal, explaining that he did not trust the Emergency Hospital’s doctors. An ambulance team which had been called for the applicant did not transfer him to the Emergency Hospital, but recommended that he see a surgeon.

57. On the same day V., one of the applicant’s lawyers, asked the SIZO administration to transfer the applicant to Public Hospital no. 6 for inpatient treatment in connection with his fistula. Another of the applicant’s lawyers, A., asked the SIZO to place the applicant in a private hospital. The applicant agreed to be placed in that hospital. Eventually, he was not placed in either of those hospitals.

58. On the same day the SIZO staff called an ambulance for the applicant. The ambulance team noted that the applicant did not require urgent hospitalisation, and recommended that he continue with the outpatient treatment in connection with his fistula. The applicant was then placed in the SIZO medical unit.

59. On 9 November and 16 November 2009, in reply to the requests of the applicant’s lawyers concerning his hospitalisation, the SIZO administration advised that it was not competent to decide on the applicant’s placement in an outside medical facility, and suggested that the lawyers should address the requests to the court dealing with the applicant’s case.

60. On 10 November 2009 the applicant was taken to Public Hospital no. 9 for an examination. The doctors recommended that he have an operation on his navel fistula. On the same date the applicant was returned to the SIZO.

61. On 24 November 2009 an ambulance doctor examined the applicant in the hearing room of the Kyiv City Court of Appeal in connection with the constant pain in his abdomen. The applicant was given treatment for his symptoms.

62. On 26 November 2009 an ambulance doctor examined the applicant in the SIZO in connection with the constant pain in his abdomen, and found that he did not require urgent hospitalisation.

63. On 27 November 2009 a surgeon from the Emergency Hospital examined the applicant and recommended that he continue with the outpatient treatment for his navel fistula.

64. On 4 December 2009, in the light of additional information from the respondent Government on the applicant’s state of health and the treatment provided to him in the SIZO, the Court decided to lift the interim measure under Rule 39 of the Rules of Court (see paragraph 55 above).

65. In December 2009 the applicant lodged several requests with the SIZO administration, asking to be transferred to any medical facility in view of the serious deterioration in his state of health.

66. On 25 December 2009 the SIZO administration informed the applicant’s lawyer that the applicant did not require urgent hospitalisation in an outside medical facility and was receiving adequate medical treatment for his fistula in the SIZO.

67. On 18 January 2010 the applicant was placed in the surgery department of Buchanska Prison Hospital, diagnosed with a ligature fistula of the umbilical area.

68. On 20 January 2010 the applicant underwent an operation to remove the navel fistula. On 26 February 2010 he was discharged and sent back to the SIZO.

69. The Government did not provide information or supporting documents as to the treatment provided to the applicant after his discharge from the hospital. They submitted that the medical documentation for the period of time from 26 February 2010 onwards had been lost.

C. Material conditions of the applicant’s detention in the SIZO

70. According to the applicant, the cells in which he was kept in the SIZO lacked natural light, and the electric light was dim and constantly on. The inmates slept on beds without mattresses or bed linen.

71. He added that the food was unsatisfactory in terms of quality and quantity, and the prisoners were given tea and bread in the morning, porridge in the afternoon and boiled water in the evening.

D. Provision of food and water to the applicant on hearing days

72. According to the applicant, he was not provided with food and water on hearing days, since Ukrainian legislation did not make provision for this. It was not possible to have meals or drinks at the courts dealing with his case.

II. RELEVANT DOMESTIC LAW AND PRACTICE

73. The provisions of the Code of Criminal Procedure of 1960 concerning pre-investigation enquiries can be found in Kaverzin v. Ukraine(no. 23893/03, § 45, 15 May 2012).

74. The Code of Criminal Procedure of 28 December 1960 was repealed with effect from 19 November 2012, when the new Code of Criminal Procedure of 2012 came into force. The new Code abolished the stage of pre-investigation enquiries. The relevant provisions of the new Code can be found in Nagorskiy v. Ukraine ((dec.), no. 37794/14, § 38, 4 February 2016).

III. RELEVANT MATERIAL OF THE COUNCIL OF EUROPE

75. The relevant Council of Europe material and other material establishing standards for the conditions of detention, together with reports concerning the conditions of detention in Ukraine, can be found in Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010) and Gorbatenko v. Ukraine (no. 25209/06, §§ 97-100, 28 November 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

76. The applicant complained that he had been ill-treated by the police and that no effective investigation into his complaints had been carried out. He further complained that he had had no access to adequate medical treatment in detention and that the material conditions of his detention had been poor. Lastly, he complained that he had not been provided with food and water on hearing days. He relied on Article 3 of the Convention, which reads as follows:

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

A. Alleged ill-treatment by the police and alleged ineffectiveness of the ensuing investigation

77. The applicant complained that he had been ill-treated by the police and that no effective investigation into his complaints had been carried out.

1. Admissibility

78. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

79. The relevant general principles of the Court’s case-law concerning Article 3 of the Convention and the State’s obligations stemming from that provision are summarised in particular in El-Masri v. the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§ 182-185 and 195-198, ECHR 2012) and Bouyid v. Belgium ([GC] no. 23380/09, §§ 81-90 and 100-101 ECHR 2015).

(a) Substantive aspect of Article 3 of the Convention

i. The parties’ submissions

80. The applicant submitted that police officers had beaten him in order to extract a confession from him. In particular, he stated that Officer G., the first deputy head of the Kyiv Shevchenkivskyy district police station, had kicked him in the face and abdomen and injured the area where he had had an operation for his umbilical hernia. He added that the ITT and SIZO doctors had seen the injuries which he had sustained; however they had been forced not to register them. No detailed record of his injuries or condition had been made upon his admission to the SIZO on 26 February 2008. He further stated that the police and the ITT and SIZO administrations had ignored his numerous complaints regarding the ill-treatment and the deterioration in his health.

81. The Government submitted that there was no evidence of the applicant being ill-treated in the material relating to the inquiries and the investigation, and that the applicant had failed to present any evidence in support of his allegation. They further stated that the applicant had complained of ill-treatment for the first time four months after the events in question had taken place. Upon his admission to the SIZO he had been examined by medical staff and no injuries had been found on his body. He had not expressed any complaints in this regard. The absence of physical injuries had been confirmed by the forensic medical examination which had been conducted at the applicant’s request on 24 June 2008 (see paragraph 14 above).

ii. The Court’s assessment

82. The Courts reiterates that where events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El-Masri, cited above, § 152, and Bouyid, cited above, § 83).

83. Turning to the circumstances of the present case, the Court notes that although the parties disagreed as to the date of the applicant’s arrest (see paragraphs 7 and 8 above), it is undisputed that he remained under the control of the police from 10 to 16 February 2008.

84. The Court further notes that the applicant had the following injuries:

- a bruise under his right eye, according to the results of the medical examination carried out upon his arrival at the ITT on 16 February 2008 (see paragraph 10 above);

- contusion to the abdomen and facial tissue, according to the certificate issued by the Emergency Hospital following the applicant’s treatment there from 20 to 25 February 2008 (see paragraph 11 above). Upon his admission to the SIZO on 26 February 2008, a doctor examined the applicant and classified the above injuries as “a post-operative condition” following an operation on his umbilical hernia in 2007 (see paragraph 12 above).

85. The Court observes that it has not been disputed that the applicant did not have any marks on his face or body when he entered the Shevchenkivskyy district police station on 9 or 10 February 2008.

86. In the light of the foregoing, and in the absence of explanations from the Government as to the origin of the applicant’s injuries, the Court deems it sufficiently established that the injuries described in the certificates produced by the ITT and the Emergency Hospital occurred while he was under police control in the Shevchenkivskyy district police station. The Court further notes that the above injuries correspond to the kind of traces that would originate from kicks in the face and the abdomen such as those that he described (see paragraph 9 above).

87. It remains to be established whether the applicant is justified in claiming that the treatment of which he complained was in breach of Article 3 of the Convention.

88. In this regard, the Court reiterates that, in respect of a person who is deprived of his or her liberty, or, more generally, confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, cited above, §§ 88 and 101).

89. In the present case, the Government denied that police officers had used physical force on the applicant (see paragraph 81 above). They did not submit any arguments providing a basis for an explanation or justification of the force used against him that resulted in the above-mentioned injuries. In the absence of explanations from the Government, the Court must conclude that the physical force had been used against the applicant and had not been made necessary by his own conduct.

90. There has therefore been a violation of the substantive limb of this provision.

(b) Procedural aspect of Article 3 of the Convention

i. The parties’ submissions

91. The applicant stated that the authorities had failed to carry out an effective and prompt investigation into his ill-treatment complaints. He submitted that the investigating officer had questioned him for the first time in August 2010, more than two years after he had complained of being ill‑treated. He further stated that the courts and superior prosecutors, when quashing the decisions of the investigating officer refusing to initiate criminal proceedings into his ill-treatment complaints, had consistently noted similar investigative defects. Lastly, referring to the Court’s case law, the applicant stated that the investigation into his ill-treatment complaints, a pre-investigation inquiry rather than a full-scale investigation, could not be considered effective.

92. The Government maintained that the domestic authorities had conducted all necessary investigative actions and carried out an effective investigation into the applicant’s complaints. They further stated that the repeated quashing of the decisions refusing to initiate criminal proceedings, as well as the instructions given by the court and superior prosecutors to the investigating officer, indicated that the domestic authorities had intended to carry out an effective investigation into the applicant’s complaints.

ii. The Court’s assessment

93. The Court notes that, in the present case, the applicant had an arguable claim that he had been subjected to treatment prohibited by Article 3 of the Convention by the police. The authorities therefore had an obligation to investigate it, in accordance with the effectiveness standards established in the Court’s case-law (see, amongst many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII).

94. The Court observes that between 16 May 2008 and 21 May 2013 the applicant’s complaint was handled in the form of a pre-investigation inquiry under the 1960 Code of Criminal Procedure (see paragraphs 13-32 above). Within that procedure, the inquiring officer could only take a limited number of steps and the victim had no formal status and could not effectively participate in the procedure (see, for example, Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).

95. The Court further notes that, during the above-mentioned period of time, the investigating officer dealing with the applicant’s case refused to institute criminal proceedings concerning his ill-treatment complaints eight times. All the decisions in this respect were subsequently quashed, mostly for non-compliance with the instructions given by either the local court on 18 November 2008 (see paragraph 19 above) or a superior prosecutor. Moreover, as the applicant pointed out in his submissions, the investigating officer questioned him for the first time in August 2010 (see paragraph 24 above), more than two years after he had complained of ill-treatment. The Government did not explain the delay in questioning the applicant, who, while detained, had been under the control of the State at all times and thus easily accessible for the investigating authority.

96. The Court further observes that from 21 May 2013 onwards the investigation into the applicant’s ill-treatment complaint was conducted in accordance with the 2012 Code of Criminal Procedure. However, it did not prove to be fruitful. The Court observes in this respect that the decisions of the investigating authority on terminating the criminal proceedings concerning the applicant’s ill-treatment complaints were quashed twice on the basis of reasons similar to those set out previously – failure to comply with the instructions of the local court (see paragraphs 34 and 37 above).

97. The Court further observes that, as the case-file material indicates, the investigation did not inquire into the origin of the bruise under the applicant’s right eye identified by the ITT staff on 16 February 2008 (see paragraph 10 above). Similarly, the investigation did not attempt to establish the origin of the injuries registered by the Emergency Hospital during the applicant’s stay there from 20 to 25 February 2008 (“contusion to the abdomen and facial tissue” – see paragraph 11 above). According to the material in the case-file, the investigating authorities considered that those injuries were the result of an operation on the applicant’s abdomen performed in April 2007 (the “post-operative condition”). However, the case file does not contain any evidence that the applicant had a “post-operative condition” before his arrest. It appears that the investigating authorities never tried to examine the applicant’s “post-operative” medical history prior to his arrest, in order to verify the existence of such a condition.

98. Overall, it appears that the manner in which the authorities approached the investigation of the applicant’s complaints was largely aimed at exonerating the officers suspected of having ill-treated him, rather than establishing the actual circumstances in which his injuries had been sustained (see, for instance and mutatis mutandis, Pomilyayko v. Ukraine, no. 60426/11, § 56, 11 February 2016).

99. The Court notes that it has already condemned patterns of investigation similar to those in the present case in a number of other cases against Ukraine (see, for example, Drozd v. Ukraine, no. 12174/03, §§ 63‑71, 30 July 2009; Savitskyy, cited above, §§ 121-122;Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Zhyzitskyy v. Ukraine, no. 57980/11, §§ 49-53, 19 February 2015). Moreover, in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012), the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill‑treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention.

100. In view of the circumstances of the present case and its earlier case‑law, the Court concludes that, in the present case, no serious effort was made to investigate the allegations of ill-treatment made by the applicant.

101. In addition, the Court notes that the inquiries and investigations into the applicant’s case lasted five years and eleven months and, according to the information submitted to the Court, were still ongoing in April 2014 at least (see paragraphs 37 and 38 above). There is no valid explanation for the length of the domestic proceedings. Thus, the requirement of promptness and expedition under Article 3 of the Convention was not complied with.

102. It follows that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the investigation into the applicant’s complaints concerning his ill-treatment by the police.

B. Alleged violation of Article 3 of the Convention in respect of the medical assistance provided to the applicant in detention

103. The applicant complained that he that he had had no access to adequate medical treatment in detention.

1. Admissibility

104. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

105. The applicant submitted that despite numerous complaints to the SIZO administration regarding his medical condition, he had had no medical assistance between 26 February and 21 March 2008. On 21 March 2008 he had been examined by a SIZO general practitioner for the first time, yet the doctor had only given him an anaesthetic. The applicant further maintained that during his detention in the SIZO he had suffered from severe pains, but had only been provided with treatment for his symptoms. In response to the Government’s observations, he submitted that he had refused to be treated at the Emergency Hospital on 4 November 2009 (see paragraph 56 above) because he had not trusted the hospital doctors, having previously had a negative experience of treatment there. After the operation performed in January 2010 (see paragraph 68 above), his rehabilitation had been difficult and lengthy, since his navel area had been purulent all the time. Lastly, the applicant noted that the Government’s failure to provide medical documentation for the period after 26 February 2010 relating to his medical rehabilitation (see paragraph 69 above) was another reason to find a violation of Article 3 of the Convention.

106. The Government submitted that the medical assistance provided to the applicant had been adequate and full, and had been in accordance with the requirements of Article 3 of the Convention. They further contended that the applicant had refused the treatment at the Emergency Hospital offered to him on 4 November 2009 (see paragraph 56 above).

(b) The Court’s assessment

i. General principles

107. The Court reiterates that, in accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject him or her 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 or her health and well-being are adequately secured (see, for instance, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‑VI).

108. However, the Court has held that Article 3 of the Convention cannot be interpreted as ensuring that every detainee should receive medical care at the same level as “in the best civilian clinics” (see Mirilashivili v. Russia (dec.), no. 6293/04, 10 July 2007). It has further held that it is “prepared to accept that, in principle, the resources of medical facilities within the [prison] system are limited compared to those of civil clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007). On the whole, the Court takes a flexible approach in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

109. The Court further notes that the “adequacy” of medical care remains a difficult element to determine. The mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical care provided was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept of the detainee’s state of health and his treatment while in detention (see, for example, Khudobin v. Russia, no.59696/00, § 83, ECHR 2006-XII), that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006), and that – where necessitated by the nature of a medical condition – supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no.3456/05, § 79, 4 October 2005; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006).

ii. Application of these principles to the present case

110. Turning to the circumstances of the present case, the Court notes that the applicant’s principal “medical” grievance concerned the authorities’ failure to provide him with adequate treatment for his navel fistula, in particular their failure to perform an operation on his navel fistula which had first been recommended by a surgeon on 5 December 2008 (see paragraph 46 above).

111. The Court observes in this connection that throughout his detention in the SIZO the applicant systematically complained of severe pain in his abdomen. The Government did not contest this fact, which was also supported by medical documents.

112. The Government’s submissions indicate that the applicant received treatment after complaining of a deterioration in his health (see paragraph 106 above). In this connection, the Court notes that the medical care provided to him cannot be assessed as systematic and comprehensive.

113. The Court is not in a position to analyse the effectiveness of the treatment provided to the applicant while in detention. However, it must note that he received mainly anaesthetics and antibiotics until his operation on 20 January 2010 (see paragraph 68 above).

114. In this connection, the Court reiterates that at the end of 2008, following his stay at the Emergency Hospital, it was recommended that the applicant have elective surgery on his navel fistula. This was also recommended three times in 2009 (see paragraphs 46, 49 and 60 above). However, such surgery was only performed on 20 January 2010. The Government did not explain the reasons for the delay in performing that operation, a delay which lasted more than a year, merely referring to the fact that the applicant had refused the medical treatment at the Emergency Hospital offered to him on 4 November 2009 (see paragraph 106 above).

115. As regards this last point, the Court takes into account the applicant’s assertion that his refusal of the treatment offered was due to his lack of trust in the medical staff at the Emergency Hospital (see paragraph 105 above). Having merely received treatment for his symptoms at that hospital on a number of previous occasions, he could reasonably have believed that further treatment there might not be successful.

116. In the light of the foregoing, the Court finds that the medical care provided to the applicant was not adequate and was not followed by a comprehensive therapeutic strategy. As a result of the inadequacy of the medical care provided to him, the applicant endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and his dignity was undermined.

117. There has therefore been a violation of Article 3 of the Convention in this respect.

C. Alleged violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in the SIZO

118. The applicant complained that the material conditions of his detention had been poor.

1. Admissibility

119. The Government claimed that the applicant had failed to exhaust domestic remedies, as he had not complained of his detention conditions in the SIZO to a prosecutor or an administrative court. In the Government’s view, such actions could have been effective and constituted an accessible remedy in the applicant’s situation.

120. The applicant submitted that he had made a number of complaints to the SIZO administration regarding the insufficiency of the conditions of his detention, but to no avail. He could not present any documentary proof, in view of those complaints having been lost. In any event, the applicant considered that the Government had failed to substantiate their objection. He added that similar objections had already been rejected by the Court in cases against Ukraine, as the problems arising from complaints of conditions of detention in Ukrainian penal institutions were of a structural nature.

121. The Court notes that it has already dismissed similar objections by the Government on a number of occasions, finding the remedies they referred to ineffective on the grounds that it had not been shown that recourse to such proceedings could have brought an improvement in an applicant’s detention conditions (see, for example, Rodzevillo v. Ukraine, no. 38771/05, § 41, 14 January 2016, and Kleutin v. Ukraine, no. 5911/05, § 78, 23 June 2016). The Court sees no reason to depart from that finding in the present case, and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.

122. The Court further notes that the complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

123. The applicant noted that the conditions of detention in the SIZO had not met the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter, “the CPT”) standards as regards the minimum living space per person. He added in particular that the sanitation, ventilation, lighting conditions, food and sleeping arrangements in the SIZO had not corresponded to what the Government had described (see paragraph 124 below). In particular, the cells in which he had been kept in the SIZO had lacked natural light, the electric light had been dim and constantly on, and the inmates had slept on beds without mattresses or bed linen. The food had been unsatisfactory in terms of quality and quantity. The prisoners had been given tea and bread in the morning, porridge in the afternoon and boiled water in the evening. The applicant referred to the relevant CPT reports and the Court’s case law concerning the conditions of detention in the Kyiv SIZO (see, for example, Gavula v. Ukraine, no. 52652/07, 16 May 2013; Koval v. Ukraine, no. 65550/01, 19 October 2006; and Kharchenko v. Ukraine, no. 40107/02, 10 February 2011).

124. The Government submitted that the conditions of the applicant’s detention in the SIZO had been in compliance with domestic prison rules. During his detention in the SIZO the applicant had been held in different cells of varying sizes containing different numbers (from 4 to 19) of inmates. According to the Government, each inmate had had between 2.5 and 2.8 sq. m of personal space.

(b) The Court’s assessment

125. As indicated paragraph 107 above, Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of the execution of such a measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

126. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purposes of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention, and may disclose a violation, either alone or taken together with other shortcomings. When the personal space available to a detainee falls below 3 sq. m. of floor space in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (see Muršić v. Croatia [GC], no. 7334/13, §§ 136-137, ECHR 2016). This presumption will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m. are short, occasional and minor; (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, § 138).

127. The Court notes that, in the present case, the Government acknowledged that during his stay in the Kyiv SIZO the applicant had at his disposal less than 3 sq. m of personal space. In particular, as reported by the Government (see paragraph 124 above), the cells in which the applicant had been detained had allowed between approximately 2.5 sq. m. and 2.8 sq. m. of floor space per inmate, with the average number of inmates varying from 4 to 19 persons.

128. As regards other elements relevant to the assessment of the conditions of detention, the Court notes that the applicant’s submissions as regards an unsanitary environment and a lack of respect for hygiene are well detailed. Moreover, on a number of occasions the Court has found a violation of Article 3 of the Convention in respect of overcrowding and an unsanitary environment in the same pre-trial detention centre during the same period of time – see Gavula (cited above, §§ 70-75 and concerning the period 26 February 2003-August 2010), andKharchenko (cited above, §§ 52-55 and concerning the period 20 April 2001-4 August 2003). It therefore accepts the applicant’s description of the material conditions of his detention.

129. In addition, although neither of the parties specified the amount of time the applicant had spent locked up in his cell each day, given the regulations concerning the SIZO regime in Ukraine, the Court observes that the applicant and his cellmates had to spend most of each day in such conditions (see, mutatis mutandis, Gavula, cited above, § 71, and Zakshevskiy v. Ukraine, no. 7193/04, § 67, 17 March 2016).

130. In these circumstances, the Court finds that the conditions of the applicant’s detention in the Kyiv SIZO, in particular the lack of personal space afforded to him, combined with his state of health and the unsanitary environment as regards personal hygiene and the lack of outdoor exercise, over the course of approximately five years, amounted to a treatment prohibited by Article 3 of the Convention. Accordingly, there has been a violation of that provision in this respect.

D. Alleged violation of Article 3 of the Convention in respect of the lack of provision of food and water to the applicant on hearing days

131. The applicant complained that he had not been provided with food and water on hearing days.

1. Admissibility

132. The Government maintained that the applicant should have lodged a complaint with the prosecutor’s office or a court denouncing the failure to provide him with food and water on hearing days.

133. The applicant submitted that he had done so, having raised that issue at the hearing before the trial court, but to no avail. He could not, however, present any documentary proof in this respect.

134. The Court reiterates that the rule on exhaustion of domestic remedies, referred to in Article 35 § 1 of the Convention, obliges applicants to firstly use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65‑67, Reports of Judgments and Decisions 1996‑IV).

135. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy they refer to was an effective one, available in theory and in practice at the relevant time (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 225, ECHR 2014 (extracts)).

136. The Court notes that the Government merely referred to the theoretical possibility of the applicant lodging a complaint with the prosecutor’s office or court denouncing the failure to provide him with food and water on hearing days; they did not show that that remedy was available in practice. In particular, the Government failed to produce any examples of cases in which such a complaint had been ruled on. While it is not for the Court to give a ruling on an issue of domestic law that is as yet unsettled, the absence of any case-law indicates the uncertainty of that remedy in practice (see, mutatis mutandis, Štrucl and others v. Slovenia, nos. 5903/106003/10 and 6544/10, § 127, 20 October 2011).

137. Having regard to the foregoing, in the absence of evidence that the remedy suggested by the respondent Government in respect of the applicant’s complaint concerning the provision of food and water was effective, the Court considers that the applicant was not required to exhaust that remedy, and that the Government’s related objection should be dismissed.

138. The Court further notes that this complaint is not neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

139. The applicant submitted that between February 2008 and June 2011 he had been transported between the SIZO and the trial court on more than a hundred occasions. He noted that he had been transported along with other SIZO detainees who had had hearings in their cases on those days. He had had to spend whole days at the trial court, waiting for the end of the hearings in the other detainees’ cases. The process of being escorted had usually commenced in the early morning and had ended in the evening, so he had missed meals scheduled to be served in the SIZO. The applicant criticised the Government’s argument concerning destroying of the documentation on the catering arrangements pointing out that the present case had been communicated in 2013 and by that time the above-mentioned documentation related to the period of time from 2010 to 2011 should have been available to the Government.

140. The Government submitted that the documentation on the catering arrangements for the applicant on hearing days had been destroyed upon the three-year time-limit for storing such documentation expiring. At the same time, they contended that the applicant had been provided with dry rations on the hearing days, in accordance with the domestic law. The Government also suggested that the applicant had been allowed to take his own food to the court (food either bought at the SIZO shop or given to him by his relatives).

(b) The Court’s assessment

141. As already mentioned in paragraphs 82 and 107 above, 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 execution of the measure of detention 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. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them. These principles also apply to detainees’ confinement in a court and during their transportation, and include providing proper nutrition (see Yevgeniy Bogdanov v. Russia, no. 22405/04, §§ 101-105, 26 February 2015; Romanova v. Russia, no. 23215/02, §§ 88‑92, 11 October 2011; Kovaleva v. Russia, no. 7782/04, §§ 62-65, 2 December 2010; andYakovenko v. Ukraine, no. 15825/06, §§ 103-113, 25 October 2007).

142. The Court also reiterates that giving somebody permission to provide his or her own food cannot be a substitute for providing appropriate catering arrangements, because it is primarily the State that is responsible for the well-being of persons deprived of their liberty (see Vlasov v. Russia, no. 78146/01, § 96, 12 June 2008).

143. Turning to the circumstances of the present case, the Court notes that the Government did not contest the assertion that on the days when there had been court hearings the applicant had left the SIZO before breakfast and had not returned until after dinner (see, mutatis mutandis, Vlasov, cited above, § 96; compare Starokadomskiy v. Russia, no. 42239/02, § 58, 31 July 2008; see, by contrast, Bagel v. Russia, no. 37810/03, § 69, 15 November 2007). Moreover, the Court is not convinced by the Government’s unsupported assertion that the applicant was provided with dry rations on the days when he was transported to the court (see paragraph 140 above and, mutatis mutandis,Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 108, 12 February 2009). It notes that the Government did not comment on the applicant’s argument that the documentation on the catering arrangements related to the period of time from 2010 to 2011 should have been available to them. The Court would have expected the Government to provide such documentation in order to discharge the burden of proof in this respect. In the absence of any such information submitted by the Government, the Court considers that on hearing days the applicant was left without adequate food and water. In connection with its above findings, the Court would emphasise that it finds it unacceptable for a person to be detained in conditions where no provision is made for meeting his or her basic needs (see Riad and Idiab v. Belgium, nos.29787/03 and 29810/03, § 106, 24 January 2008, and Denisenko and Bogdanchikov v. Russia, cited above, § 108).

144. Having regard to the nature and duration of the situation in which the applicant was placed, the Court considers that there has been a violation of Article 3 of the Convention in respect of the applicant not being provided with food and water on hearing days.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

145. The applicant complained that he had not had at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this 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

146. The Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. Alleged lack of domestic remedies for the complaints concerning the material conditions of detention, the insufficiency of medical treatment, and the provision of food and water to the applicant on hearing days

147. The Government restated the arguments set out above (paragraphs 119 and 132) and concluded by stating that the applicant had had an effective domestic remedy in respect of his complaints concerning his conditions of detention and the provision of food and water on hearing days. However, he had not pursued that remedy.

148. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 148, ECHR 2014).

149. The Court reiterates that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning conditions of detention and a lack of medical treatment (see, among other authorities, Melnik, cited above, §§ 113-16; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-105, 16 May 2013). Referring also to its above findings on the exhaustion of domestic remedies as regards the applicant’s complaint regarding the material conditions of his detention (paragraph 121 above), the Court sees no reason to decide otherwise in the present case.

150. As regards the applicant’s complaint that he had no effective domestic remedy in respect of his complaint regarding the provision of food and water on hearing days, the Court refers to its finding above (paragraphs 136-137) that the remedies relied on by the Government were not effective within the meaning of Article 35 § 1 of the Convention. Having regard to the close affinity between Article 35 § 1 and Article 13 of the Convention (see, for instance, Akdivar and Others v. Turkey, cited above, § 65), the Court sees no reason to conclude otherwise under Article 13 of the Convention.

151. The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention, the lack of medical treatment, and the lack of provision of food and water on hearing days.

2. Alleged lack of remedies for the complaint that the investigation into the alleged ill-treatment was ineffective

152. The Government stated that the applicant had had an effective domestic remedy, since his ill-treatment complaints had been duly investigated.

153. The Court observes that this complaint concerns the same issues as those examined in paragraphs 93 to 101 above under the procedural limb of Article 3 of the Convention. Having regard to its conclusion in paragraph 102 above, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see Polonskiy v. Russia, no. 30033/05, § 127, 19 March 2009).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

154. The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention that his detention had not been lawful and that the courts which reviewed his detention had not taken into consideration some of his arguments. He further invoked Article 14 of the Convention without any substantiation. Lastly, he complained that the respondent Government failed to comply with the Court’s decision of 30 October 2009 under Rule 39 of the Rules of Court (see paragraph 55 above).

155. As to the applicant’s complaints under Article 5 of the Convention, the Court notes that the applicant failed to provide documents in support of the above claims. The Court further notes that on 4 December 2009 it has lifted the interim measure under Rule 39 of the Rules of Court on the basis of the information provided by the parties (see paragraph 64 above). Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

156. 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

157. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.

158. The Government considered that claim excessive.

159. Making its assessment on an equitable basis, the Court awards the applicant EUR 11,700 in respect of non-pecuniary damage.

B. Costs and expenses

160. The applicant also claimed EUR 1,000 for costs and expenses incurred before the domestic courts, and EUR 4,800 for those incurred before the Court.

161. The Government considered the amount claimed excessive and unsubstantiated.

162. 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 documents in its possession and the above criteria, and the fact that the applicant was granted legal aid (see paragraph 2 above), the Court makes no award under this head.

C. Default interest

163. The Court considers it appropriate that the default interest rate 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,

1. Declares the applicant’s complaints under Article 3 of the Convention admissible;

2. Declares the applicant’s complaints under Article 13 of the Convention concerning the lack of an effective domestic remedy for his claims under Article 3 admissible;

3. Declares the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the treatment the applicant was subjected to by the police;

5. Holds that there has been a violation of Article 3 of the Convention in that the authorities failed to carry out an effective investigation into the applicant’s complaint of ill-treatment by the police;

6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s lack of access to adequate medical treatment while detained in the Kyiv Pre-trial Detention Centre;

7. Holds that there has been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in the Kyiv Pre-trial Detention Centre;

8. Holds that there has been a violation of Article 3 of the Convention in respect of the lack of provision of food and water to the applicant on hearing days;

9. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention in the Kyiv Pre-trial Detention Centre, of the lack of adequate medical treatment in the Kyiv Pre-trial Detention Centre and of the lack of provision of food and water on hearing days;

10. Holds that there is no need to examine whether there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law for the applicant’s complaint that the investigation into his ill-treatment by the police was ineffective;

11. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

12. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                 Georges Ravarani
Deputy Registrar                               President

0
Комментариев
1245
Просмотров
Оставьте Ваш комментарий:

Пожалуйста, авторизуйтесь или зарегистрируйтесь для добавления комментария.


Популярні судові рішення