ZAKSHEVSKIY v. UKRAINE - 7193/04 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 279 (17 March 2016)

In the case of Zakshevskiy v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 2 February 2016,

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

PROCEDURE

1. The case originated in an application (no. 7193/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Vladimirovich Zakshevskiy (“the applicant”), on 9 February 2004.

2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, from the Ministry of Justice.

3. The applicant complained that the conditions of his detention had been poor, that handcuffs had been used whenever he was taken out of his cell, that no effective procedure had been available to him to challenge the lawfulness of his pre-trial detention, and that his rights of defence had been violated.

4. On 14 February 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1972 and is currently serving a sentence in prison no. 100.

A. Criminal proceedings and the applicant’s detention

6. On 1 April 2000 criminal proceedings were instituted in Donetsk in connection with a robbery committed in Dzerzhinsk.

7. On 2 June 2000 criminal proceedings were instituted in Kharkiv in connection with a robbery committed on the Kharkiv-Dnipropetrovsk-Simferopol road.

8. On 9 August 2001 criminal proceedings were instituted in Yevpatoriya in connection with a murder and attempted murder committed in the course of an armed robbery (“the murder proceedings”).

9. On 30 October 2001 the Chervonodzerzhynskiy District Court (“the District Court”) granted the prosecutor’s request to put the applicant, a former police officer, on remand as a suspect in the criminal proceedings concerning the robbery on the Kharkiv-Dnipropetrovsk-Simferopol road. The District Court held that, as the applicant was suspected of having committed a serious crime and had absconded during the investigation, his detention was necessary to prevent him from reoffending. The court also noted that the applicant’s personality was to be taken into consideration, without giving any further details. On the same date, the applicant’s name was put on a wanted list.

10. On 11 November 2001 the applicant was arrested in accordance with the District Court decision of 30 October 2001. He submitted that he had presented himself to the police voluntarily once he had become aware that he was wanted. On the same day, he drafted a “statement of voluntary surrender” (явка з повинною) in which he confessed to committing, as part of a criminal group, a number of armed robberies on the Kharkiv-Dnipropetrovsk-Simferopol road, as well as one in the town of Yevpatoriya. He stated that, in the course of the latter, he had used a firearm against the victim. The applicant also provided more details in writing about the above crimes and his acquaintance with his accomplices and informed the police about two other armed robberies which he and his accomplices had committed in the town of Dzerzhynsk, as well as about other crimes of which he was aware.

11. On 12 November 2001 the applicant was charged with armed robbery and questioned. Before being questioned he was informed of his procedural rights but signed a waiver of his right to legal assistance. He made similar statements to those given to the police the day before, including about the shooting incident in Yevpatoriya. On the same day, he familiarised himself with the decision of 30 October 2001, against which he was entitled to appeal. He did not appeal against the decision.

12. On 13 November 2001, in the absence of a lawyer, the applicant was questioned in the context of the robbery proceedings. The Government submitted - and this is not contested by the applicant - that the applicant again waived his right to a lawyer, having once again been informed of his rights. During the questioning, the applicant, apart from giving information on the robberies, reiterated his statements regarding the shooting which had occurred in Yevpatoriya. He was further questioned in that regard.

13. On 21 November 2001 a lawyer, D., was appointed to represent the applicant. On the same day, in the absence of a lawyer, the applicant was questioned as a suspect in the murder proceedings. He admitted to shooting a victim in the course of the armed robbery but denied that he had done so intentionally.

14. On 22 November 2001, in the presence of his lawyer, the applicant was charged with murder and attempted murder, and questioned as an accused. He admitted his guilt in respect of the armed robbery but denied the murder charges. A reconstruction of the crime scene was carried out.

15. On 12 December 2001 the applicant was charged with armed robbery causing grievous bodily harm. He waived his right to a lawyer during questioning.

16. On 13 December 2001 the applicant was charged with premeditated armed robbery as part of a criminal group. He again waived his right to a lawyer.

17. On 4 January 2002 the District Court extended the applicant’s pre-trial detention to four months. The applicant did not appeal against this decision.

18. On 8 February 2002 the criminal proceedings concerning robberies on the Kharkiv-Dnipropetrovsk-Simferopol road were joined with the murder proceedings.

19. On 7 March 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, and referring to “the applicant’s personality”, albeit without assessing it, the seriousness of the charges against him, and the need for additional time to conduct the necessary investigative measures, extended the applicant’s detention to six months. The decision was not amenable to appeal.

20. On 12 March 2002 B. was appointed as the applicant’s lawyer.

21. On 4 April 2002 the criminal proceedings regarding the robberies in Dzerzhynsk were joined with the other proceedings against the applicant.

22. On 8 April 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, extended the applicant’s detention to nine months on the same grounds as those in its ruling of 7 March 2002. The decision was not amenable to appeal.

23. On 10 July 2002 L. replaced B. as the applicant’s lawyer. On the same day, the applicant was charged with a number of crimes, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He pleaded not guilty as charged and refused to give further testimonies.

24. On 18 November 2002 amended charges were brought against the applicant and he was questioned again.

25. On 28 December 2002 the applicant was granted access to the case file. According to the Government, no investigative measures were conducted that day.

26. After the investigation had been completed the case was referred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), acting as a first-instance court, for trial. The decision to do so was not amenable to appeal.

27. On 12 June 2003 the applicant requested the Court of Appeal to change his preventive measure to a non-custodial one.

28. On 17 December 2003 the Court of Appeal remitted the case for additional investigation, holding that the applicant’s rights of defence had been breached. It found, inter alia, that the applicant had officially been charged with offences other than those considered by the trial court. It further established that on 10 July, 18 November and 28 December 2002 investigative measures had been carried out in the absence of the applicant’s lawyer, contrary to the requirements of domestic law. The court also decided, without giving reasons or setting a time-limit, that the applicant would remain in detention. The applicant appealed in cassation against that decision and requested, inter alia, that the preventive measure, namely the detention ordered be lifted.

29. On 29 April 2004 the Supreme Court heard the applicant’s appeal in the presence of the prosecutor. It upheld the decision of the Court of Appeal of 17 December 2003 and stated, without giving any reasons, that there were no grounds for changing or discontinuing the preventive measure imposed on the applicant.

30. On 2 August 2004 V. was appointed as the applicant’s lawyer.

31. On 6 August 2004, in the presence of his lawyer, the applicant was charged with a number of criminal offences, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He admitted to his acquaintance with the co-accused, but pleaded not guilty on all charges.

32. On 20 August 2004, in the presence of his lawyer, amended charges were brought against the applicant. The latter refused to sign or receive copies of the relevant papers as he disagreed with the charges. During further questioning he pleaded not guilty and refused to give any testimony.

33. On 27 August 2004 the applicant and his lawyer were granted access to the case file, and on 3 September 2004 the case was referred for trial.

34. On an unspecified date, the applicant lodged a request for release with the Court of Appeal.

35. On 6 October 2005 the Court of Appeal, having acquitted the applicant on four of the eight charges for lack of proof, found him guilty of banditry, several counts of armed robbery, intentional murder and attempted murder. It sentenced him to life imprisonment with confiscation of all his property. The court based its findings to a large extent on the testimonies of the applicant and his co-defendants given during the pre-trial investigation, having found them to be corroborated by a number of other pieces of evidence. In the part of the judgment which concerns the murder charges, the court referred, in particular, to the “testimonies given by the applicant as a suspect and an accused, including in the presence of a lawyer”. It further dismissed as ill-founded the applicant’s complaints that his rights of defence had been violated and his requests to declare inadmissible his statements obtained in the absence of a lawyer. In this context, when finding the applicant guilty of armed robberies, the court held that, having been informed of his procedural rights, the applicant had voluntarily waived his right to legal representation and that such a waiver had been lawfully accepted by the investigative authorities as robbery charges could not lead to a life sentence. It further held that during questioning on the murder, the applicant had been legally represented and had made his statements in the presence of a lawyer.

36. In addition, the Court of Appeal gave a separate ruling by which it declared inadmissible a number of pieces of evidence related to different charges against the applicant and his co-defendants, as the evidence had been obtained in violation of the defendants’ rights of defence. In particular, as far as the applicant was concerned, apart from the evidence which had been found inadmissible on 17 December 2003, the court further excluded from the body of evidence some of the testimonies given by the applicant on 8 and 9 January 2002. It held that, even though the applicant had allegedly confessed to murdering five people shortly after his arrest, he had nevertheless been questioned as a witness, in the absence of a lawyer.

37. The applicant appealed in cassation against the judgment of 6 October 2005. He stated in particular that there had been insufficient evidence to prove his guilt; he had been ill-treated by the police; on a number of occasions during the pre-trial investigation he had been questioned in the absence of a lawyer and that evidence obtained in violation of his rights of defence had nevertheless been used to secure his conviction.

38. On 19 October 2006 the Supreme Court of Ukraine held a hearing in the presence of the prosecutor, the applicant and his sister - who acted as his representative. On the same day, it upheld the applicant’s conviction of 6 October 2005. It dismissed as unsubstantiated his complaints that his rights of defence had been violated at the pre-trial stage of the proceedings, holding that those complaints had been duly examined and dismissed by the Court of Appeal. It also dismissed as unsubstantiated the applicant’s allegations of ill-treatment by the police.

B. Conditions of detention in SIZOs nos. 27 and 5

1. The applicant’s account

39. Between 28 July and 13 October 2004 the applicant was held in the Kharkiv pre-trial detention centre no. 27 (“Kharkiv SIZO”), in cell no. 537. He submitted that his cell had been overcrowded: it had measured 16 square metres, contained eight beds for ten people, and detainees had had to take turns to sleep. He also alleged that some of the cellmates had been suffering from tuberculosis. In this context, he submitted written statements made by his cellmates K., G., K.I., P. and O.

40. The applicant’s sister complained to the Governor of Kharkiv SIZO about the conditions of her brother’s detention. By a letter dated 13 June 2005 the Governor informed her that the cell in question had been designed to accommodate eight people and that no more than eight inmates had been held in that cell during the applicant’s detention. The Governor further informed her that, according to medical documents concerning K., G., K.I., P. and O., none of them had been suffering from an active form of tuberculosis. He stated that the applicant had never been in contact with anyone suffering from such a disease whilst in Kharkiv SIZO.

41. After his conviction on 6 October 2005, the applicant was transferred to the high-security wing of the Donetsk pre-trial detention centre no. 5 (“Donetsk SIZO”). According to the applicant, he was handcuffed whenever he left his cell, including during daily walks and meetings with his relatives.

2. The Government’s account

42. In Kharkiv SIZO the applicant was held in cells nos. 27 and 537 measuring 24.2 square metres each, designed to accommodate eight detainees. The cells were equipped with a dining table, a bench, a washstand and a toilet, which was separated from the living area by a brick partition. There was natural ventilation and light through windows; artificial lighting allowed inmates to read and write without damaging their eyesight. The temperature in the cells was between 18^oC and 20^oC. Running water was constantly available in the cells. All detainees were provided with bed linen and clothes in accordance with domestic standards.

43. As regards the applicant’s allegations that he had shared his cell with persons suffering from tuberculosis, the Government pointed out that the domestic legislation provided that persons suffering from that disease should be kept separately from healthy detainees. The Government could not provide any information about the applicant’s cellmates and their state of health, however, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They noted that the applicant had not complained that his state of health had worsened in detention.

44. Whenever the applicant was taken out of his cell and escorted within the Donetsk SIZO, handcuffs were used pursuant to the relevant domestic legislation. The Government contested the applicant’s statement that he had been handcuffed during his daily walks and meetings with relatives, as the former was prohibited by the relevant domestic regulations.

II. RELEVANT DOMESTIC LAW

A. Internal Regulations of the Penal Institutions, approved by the State Department for the Enforcement of Sentences on 25 December 2003 (Order No. 275)

45. The rules governing the detention of prisoners sentenced to life imprisonment subject them to special restrictions as regards the material conditions of their detention, activities and opportunities for human contact. Those restrictions include permanent separation from the rest of the prison population, limited visiting entitlements, and a prohibition on communication with other prisoners. The rules further provide that when prisoners sentenced to life imprisonment are taken out of their cells and escorted within or outside the prison, they should be handcuffed with their arms behind their back. The escort consists of three wardens with a guard dog (regulations 23-25). On 9 November 2004 regulation 8 was amended to include the requirement that doors leading to walking areas in the sectors for life prisoners should be equipped with special windows to facilitate the wardens in taking the handcuffs off the prisoners and putting them back on.

B. Instruction on the Supervision of Prisoners Serving Sentences in Penal Institutions, approved by the State Department for the Execution of Sentences on 22 October 2004 (Order No. 205)

46. The instruction is a classified (non-public) document. An extract (paragraphs 30.9 and 30.11) submitted by the Government provides as follows:

“30.9 When prisoners sentenced to life imprisonment are taken out of their cells, a junior warden shall open the first door from the corridor side of the [door] and order the prisoners to come up to the door and turn round, facing toward the opposite wall and holding their hands behind their backs, and then, through the opening, handcuff the prisoners. Having handcuffed all the prisoners and having made sure that they have stepped back [against] the opposite wall, the warden shall [then] open the internal door. After the prisoners have been taken out of their cells, they shall undergo a partial search with the use, if necessary, of technical means of detection and control. Prisoners in this category are [to be] taken from their cells one after another, escorted by two officers from the administration and a junior warden with a guard dog.

When escorting a prisoner sentenced to life imprisonment, one junior warden shall walk ahead of him, surveying the route. The prisoner shall follow two to three metres behind. The rest of the escorting junior wardens shall follow the prisoner one metre behind. The movement of life-term prisoners is the responsibility of the on-duty assistant to the prison governor, or his deputy, who, in all instances, shall follow in the rear.

30.11 After [the life prisoners] have been led to a yard for daily walks, the handcuffs shall be removed from them.”

C. Code of Criminal Procedure, 28 December 1960 (“the CCP”) as worded at the relevant time

47. The provisions of the CCP concerning the application of preventive measures and the defendant’s rights during trial provide, in so far as relevant, as follows:

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

“Preventive measures shall be applied in respect of a suspect, accused, defendant or convict with the aim of preventing attempts to abscond from the investigation or trial, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions.

Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convict will try to abscond from the investigation or trial, or evade complying with procedural decisions, or obstruct the establishment of the truth in a criminal case, or pursue criminal activities.

If there are not sufficient grounds to apply a preventive measure, the suspect, accused, defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry, the investigator, prosecutor, or the court, and to inform them of any change of his place of residence.

In the case of the application of a preventive measure in respect of a suspect, he shall be [officially] charged within ten days of the date the preventive measure was applied. If no charges are brought [against him] within that period, the preventive measure shall be lifted.”

Article 165-3. Procedure for extending the term of pre-trial detention

“... The prosecutor, suspected, accused or his defence or legal representative may lodge an appeal against the resolution of the judge [extending the term of pre-trial detention] within three days of its delivery. Such an appeal shall not suspend the execution of the judge’s resolution. The resolutions issued by judges of a court of appeal and of the Supreme Court shall not be subject to an appeal ...”

Article 263. Defendant’s rights during trial

“During the trial, the defendant has the right to:

...

3) submit petitions and express his/her opinion with regard to petitions of other participants to trial; ...”

Article 274. The selection, discontinuation and change of a preventive measure by the court

“In the course of consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this. ...”

48. The provisions of the CCP concerning access to a lawyer provide as follows:

Article 45. Compulsory participation of a defence lawyer

“The participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court is compulsory:

...

4) from the time of the person’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ...

The participation of a defence lawyer in the proceedings before the court of appeal is compulsory in cases provided for by the first paragraph of this Article if the appeal raises issues capable of worsening the position of the convicted or acquitted person.”

Article 47. The procedure for selecting and appointing a defence lawyer

“A defence lawyer shall be selected by a suspect, an accused, a defendant or a convicted person ...

A defence lawyer shall be appointed [by the authorities] in the following cases:

1) when, in accordance with Article 45 §§ 1 and 2, the participation of the defence lawyer is compulsory but the suspect, accused or defendant does not wish to or cannot appoint a defence lawyer;

2) when a suspect, an accused or a defendant wishes to appoint a defence lawyer but cannot do so for lack of means or other objective reason. ...”

49. Article 395 of the CCP provides, inter alia, that the court of cassation must review whether the challenged court decision is lawful and substantiated based on the case file and any additional material submitted. The scope of the review is limited by the arguments of the cassation appeal(s). The court is empowered to review the case beyond the arguments of the cassation appeal(s), provided that this does not worsen the position of the convicted or acquitted person.

D. Code of Criminal Procedure 2012 (in the wording of 12 February 2015)

50. The provision of the Code concerning reopening of the proceedings reads as follows:

Article 445. Grounds for review of the judicial decisions by the Supreme Court of Ukraine

“1. Grounds for review by the Supreme Court of Ukraine of the judicial decisions which came into force shall be:

...

4) finding by an international judicial body, which jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case.”

E. Law on the Execution of Judgments of the European Court of Human Rights 2006

51. Section 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including the review of a case by a court and the reopening of judicial proceedings.

III. RELEVANT INTERNATIONAL MATERIAL

52. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 2005 read as follows:

“... The CPT also recommends that the Ukrainian authorities review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that these are at least 4 m² in all the establishments under the authority of the Department for the Enforcement of Sentences. ...”

“... whereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men ...”

“... recommendations ... :

- the practice of systematically handcuffing male life-sentenced prisoners whenever they are taken out of their cell to cease with immediate effect; ...”

THE LAW

I. SCOPE OF THE CASE

53. In his observations in response to those of the Government, the applicant additionally complained under Article 6 of the Convention of ineffective legal representation by legal-aid lawyers during the initial stage of the criminal proceedings against him.

54. In the Court’s view, this new complaint is not an elaboration of his original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate to take this matter up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

55. The applicant complained that the conditions of his pre-trial detention in Kharkiv SIZO had been poor. He further stated that, from 6 October 2005 to 5 May 2009, during his pre-trial detention in Donetsk SIZO, he had been handcuffed whenever he had left his cell, including during family visits and daily walks. The applicant considered such treatment to be inhuman and degrading. 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.”

56. The Court notes that the applicant’s complaints under Article 3 of the Convention concern two distinct issues, namely the allegedly unacceptable conditions of his detention in Kharkiv SIZO and his handcuffing in Donetsk SIZO. The Court will deal with these matters in turn.

A. Conditions of detention in Kharkiv SIZO

1. Admissibility

57. The Government submitted that this aspect of the case was inadmissible on the ground of non-exhaustion of domestic remedies. They contended that the applicant could have raised his complaints before the public prosecutor in charge of supervising the general lawfulness of conduct in penal institutions. Any decision taken by the prosecutor could be further challenged before the domestic courts.

58. The applicant contested the effectiveness of the above remedy. Referring to the relevant case-law of the Court (see Pokhlebin v, Ukraine, no. 35581/06, § 41, 20 May 2010), he asserted that the problem complained of was of a structural nature.

59. The Court notes that it has already dismissed similar objections by the Government on a number of occasions, finding the remedy referred to by the Government ineffective on the ground that it had not been shown that recourse to such proceedings could have brought an improvement in the applicant’s detention conditions (see, for example, Savinov v. Ukrane, no 5212/13, § 36, 22 October 2015). 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.

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

2. Merits

61. 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 the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

62. The Court reiterates, in particular, that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many other authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39-40, 7 April 2005 and Ananyev and others v. Russia, nos. 42525/07 and 60800/08, §§ 146-149, 10 January 2012). Whereas the provision of four square metres remains the desirable standard of multiple-occupancy accommodation, the Court has found that where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must, in general, be considered to be so severe as to justify a finding of a violation of Article 3 (see mutatis mutandis Ananyev and others v. Russia, cited above, §§ 144 and 145).

63. The Court notes that in the present case the applicant has provided some details concerning the size of the particular cell in which he stayed during specific periods of time, the number of inmates accommodated therein or other arrangements in the cell. The Government alleged that the applicant’s complaints had not been proven beyond reasonable doubt and that his suffering had not attained the minimum level of severity. They provided a description of the conditions in which the applicant had been detained, disputed the size of the cell and cast doubt on the testimonies of the applicant’s alleged cellmates, while also admitting that records concerning persons who were held in Kharkiv SIZO with the applicant had been destroyed.

64. The Court does not find it necessary to resolve the factual dispute between the parties as, in any event, the available evidence indicates that during his stay in Kharkiv SIZO the applicant lacked personal space. In particular, as reported by the Government, the cells, which were designed for eight inmates and measured 24.2 square metres, allowed some three square metres of floor space per inmate. The Government did not actually state how many inmates occupied these cells at the relevant time, the records having been destroyed.

65. Furthermore, given that the cells also contained sanitary facilities, furniture and fittings, the personal space available to detainees was further reduced.

66. Of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. The Court has found a violation of Article 3 because the lack or short duration of outdoor exercise was a factor that further exacerbated the situation of the applicant, who was confined to his cell for all or the rest of his time (see Ananyev and others, cited above, §§ 149-151 and the case-law cited therein).

67. The Court observes from the material in the case file concerning the SIZO regime that the applicant and his cellmates had no freedom of movement and were confined to their cell for most of the day.

68. In the light of its case-law (see, among other authorities, Ananyev and others, cited above, §§ 160-166, Melnik v. Ukraine, cited above, § 103, Gorbatenko v. Ukraine, no. 25209/06, § 139, 28 November 2013, and Iglin v. Ukraine, no. 39908/05, §§ 51-52, 12 January 2012), the Court finds that the conditions of the applicant’s detention in SIZO no. 27, in particular the lack of personal space afforded to the applicant, combined with the lack of access to outdoor activities for almost three months of his detention, amounted to degrading treatment. Accordingly, there has been a violation of Article 3 of the Convention in this respect.

69. In view of those findings, the Court does not find it necessary to address the applicant’s allegation that he shared the cell with detainees infected with tuberculosis.

B. Handcuffing in Donetsk SIZO

70. The Government stated that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, as he had not lodged the relevant complaint before the prosecutor’s office. Further, they denied that the applicant had been handcuffed during family visits and daily walks, and argued that his allegations to that effect were not supported by any evidence.

71. The applicant submitted that the remedy referred to by the Government was not effective, as the handcuffing of life prisoners when outside their cells was prescribed by the domestic legislation and therefore constituted a structural problem.

72. The Court does not find it necessary to determine whether, as the Government argued, the applicant failed to exhaust domestic remedies, as it finds that this complaint is, in any event, inadmissible for the reasons given below.

73. The Court has consistently stressed that measures depriving a person of his liberty may often involve an element of suffering and humiliation connected with a given form of legitimate treatment or punishment. As indicated in paragraph 61 above, the State must ensure that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding that unavoidable level of suffering inherent in detention (see Kudła v. Poland, cited above, §§ 92-94).

74. Handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary (see Gorodnitchev v. Russia, no. 52058/99, § 108, 24 May 2007, and Kucheruk v. Ukraine, no. 2570/04, § 139, ECHR 2007-X).

75. The Court observes that the applicant’s submissions concerning this part of his complaint are limited to a general complaint about the conditions of detention applicable to life-sentence prisoners, which provided for what he considered unjustified handcuffing. Neither in his initial submissions nor in his observations in response to those of the Government did the applicant provide any details concerning the contested measure, including the manner in which it had been applied. He believed that there had been no grounds to handcuff him as he had behaved well, but did not demonstrate the nature and extent of the suffering and humiliation caused to him by the restriction complained of and failed to substantiate whether that suffering went beyond that inevitably connected with his lawful detention (see, mutatis mutandis, Kudła, cited above, §§ 92-94, and Okhrimenko v. Ukraine, no. 53896/07, § 98, 15 October 2009).

76. Unlike in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 150-63, 15 May 2012), where the impugned measure, by which the prisoner is escorted by three wardens and a guard dog, was used on a life prisoner who was completely blind and required outside assistance to manage aspects of his daily life, in the present case there is no evidence that the applicant underwent suffering that would allow the Court to decide on the merits of his complaint as it stands.

77. In the light of the foregoing, the Court finds that this complaint, as presented by the applicant, does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Nonetheless, the Court notes, as it did in paragraph 162 of the Kaverzin judgment, that the regulations appeared to allow the authorities to use the impugned measure of restraint on all male life prisoners, without giving consideration to their personal situation and the individual risk they might or might not present. Even in the absence of the particular vulnerability of the applicant as in Kaverzin, the application of such rules, in the absence of an individual assessment, could give rise to problems pursuant to Article 3 of the Convention.

78. It follows, however, given the generality of the applicant’s complaint in the instant case, 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.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

79. The applicant complained that neither at the pre-trial stage of the proceedings nor during the trial did he have at his disposal an effective procedure to obtain judicial review of the lawfulness of his continued detention. He relied on Article 5 § 4 of the Convention, which reads as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

1. The parties’ submissions

80. The Government submitted that the applicant had had, at his disposal, an effective procedure to challenge his detention. In particular, by virtue of Article 165 of the CCP it had been open to him during the pre-trial stage of the proceedings to lodge an appeal against the court decision of 4 January 2002 to extend his detention, but he had not done so. Furthermore, in accordance with Articles 263 and 274 of the CCP, the applicant’s right to apply for release during the judicial stage of the proceedings had not been restricted, but he had refrained from introducing such an application. They thus claimed that the applicant had failed to exhaust the effective remedies available to him.

81. The applicant did not dispute the fact that he had not challenged the court decision of 4 January 2002, but claimed that he had lodged numerous applications for release during the trial, both when challenging the court’s decisions on the merits of the case and as separate petitions, but they had remained unexamined. He provided copies of the relevant submissions before the domestic courts. Referring to the relevant provisions of the domestic legislation and the absence of domestic case-law in support of the Government’s arguments, the applicant argued that, in fact, no effective remedies in terms of Article 5 § 4 had existed either at the investigation stage of the proceedings or during the trial. Lastly, he submitted that the situation giving rise to his complaint was similar to one which the Court had already found to be indicative of a systemic breach of Article 5 § 4 (citing, in this respect, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 248, 21 April 2011).

2. The Court’s assessment

82. The Court notes that the applicant’s detention on remand was extended on a number of occasions during the pre-trial investigation, namely on 4 January, 7 March and 8 April 2002, and twice during the trial. It also notes that, as of 7 March 2002, the decisions taken by the domestic courts extending the applicant’s detention and referring his case to a trial were not amenable to appeal (see paragraphs 19, 22 and 26 above).

(a) Detention between 4 January and 7 March 2002

83. It is not disputed by the parties that the applicant did not appeal the court ruling of 4 January 2002, even though Article 165-3 of CCP provided for such a possibility (see paragraph 47 above). The Court cannot examine in abstracto the quality of a judicial review which was not sought by the applicant and did not therefore take place (see, for example, Nechiporuk and Yonkalo v. Ukraine, cited above, § 246).

84. It follows that the applicant’s complaint concerning the lack of an effective procedure to challenge the lawfulness of his continued detention between 4 January and 7 March 2002 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b) Detention after 7 March 2002

85. The Court finds that the Government’s objections as to the exhaustion of domestic remedies in respect of the period in question are closely linked to the merits of the applicant’s complaint under Article 5 § 4 of the Convention. It therefore joins them to the merits.

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

B. Merits

87. The applicant alleged that no effective procedure existed, either under domestic law or in practice, by which he could have obtained a judicial review of the lawfulness of his continued detention.

88. The Government did not comment on the merits but referred to their submissions concerning the admissibility of this part of the case (see paragraph 80 above).

89. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This implies that a procedure for review of the lawfulness of detention must be available in the domestic legal system. Such a procedure must be in conformity with the principles established in the Court’s case-law (see Molodorych v. Ukraine, no. 2161/02, § 97, 28 October 2010).

90. The opportunity to initiate such a procedure must be provided soon after the person is taken into detention and, if necessary, at reasonable intervals thereafter. The review procedure must be conducted with due diligence (see, for example, Sergey Volosyuk v. Ukraine, 1291/03, 12 March 2009).

91. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009, with further references). The possibility for a detainee to be heard, either in person or through some form of representation, features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B). Furthermore, although the Convention does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, “a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance” (see, for example, Navarra v. France, 23 November 1993, § 28, Series A no. 273-B).

92. The question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29468/95, § 84, ECHR 2000-XII).

93. The Court will examine in turn the applicant’s complaint regarding the pre-trial and judicial stages of proceedings.

1. Inability to obtain judicial review of the lawfulness of his detention during the pre-trial investigation after 7 March 2002

94. The Court reiterates that two court rulings authorising the applicant’s detention after 7 March 2002 and before his committal for trial were not amenable to appeal under domestic law.

95. The Court further notes that, on 7 March and 8 April 2002, the domestic court examined the prosecutor’s request for an extension of the applicant’s detention in the absence of the applicant, who was legally unrepresented at the time, and in the presence of the prosecutor and the investigator. Moreover, that court failed to address some essential aspects of the applicant’s detention and to refer to any specific considerations justifying its continuation, merely referring to the gravity of the charges against him and the need to carry out further investigative measures (see and compare Molodorych v. Ukraine, cited above, §§ 108 and 110, and Svershov v. Ukraine, no. 35231/02, §§ 71-72, 27 November 2008).

96. The Government did not suggest that any other remedies existed at the time, either in law or in practice, enabling the applicant to initiate a judicial review of the lawfulness of his continued pre-trial detention after 7 March 2002. In those circumstances, the Court concludes that the requirements of Article 5 § 4 of the Convention were not respected during that period of the applicant’s detention.

2. Inability to obtain judicial review of the lawfulness of his detention during the trial

97. The applicant argued that, during the trial, he had lodged numerous applications for release before the trial court and had repeatedly enquired about the outcome of consideration of his petitions, but to no avail.

98. The Government did not comment on the applicant’s allegations.

99. The Court observes that, at the judicial stage of the proceedings, the applicant lodged at least three applications to change the preventive measure (see paragraphs 27, 28 and 34 above).

100. During the trial stage, the lawfulness of the applicant’s detention was considered by the domestic courts on two occasions: the Court of Appeal, when it remitted the case for additional investigation; and the Supreme Court of Ukraine, when it considered the applicant’s cassation appeal against the remittal. The decisions of both courts did not state any grounds for the applicant’s continued detention (see paragraphs 28-29 above). The Court has already examined, in a number of other cases against Ukraine, the issue of reviewing the lawfulness of continued detention after the completion of pre-trial investigations and found, inter alia, that owing to a lack of clear provisions obliging trial courts to give reasons for their decisions authorising detention or to fix the term of such detention, the Ukrainian law, as it stood at the relevant time, did not provide a procedure that satisfied the requirements of Article 5 § 4 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011; and, for a more recent authority, Taran v. Ukraine, no. 31898/06, § 81, 17 October 2013). The Court sees no reason to depart from its earlier case-law in the present case and finds that there has been a breach of Article 5 § 4 of the Convention in respect of the period in question.

3. Overall conclusion

101. In light of the foregoing, the Court concludes that neither at the pre-trial stage of the proceedings, after 7 March 2002, nor during the trial did the applicant have at his disposal an effective procedure to obtain judicial review of the lawfulness of his continued detention. It therefore dismisses the Government’s objections as to the admissibility of this part of the application and finds a violation of Article 5 § 4 of the Convention in respect of both periods.

IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

102. The applicant complained that his rights of defence had not been respected in the criminal proceedings against him, as he had not been legally represented during the initial stage of the investigation or before the Supreme Court.

103. This complaint falls to be examined under Article 6 § 3 (c), the relevant part of which reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

A. No access to a lawyer at the initial stage of the investigation

1. Admissibility

104. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of the above complaint. They specified that the applicant had not raised before the domestic courts all the occurrences of the alleged violation of his rights of defence which he had mentioned in his application before the Court.

105. The applicant disagreed. He stated that he had duly raised the details of his complaint in his submissions before the domestic authorities.

106. The Court observes that it transpires from the applicant’s submissions before the domestic courts, including his cassation appeals, that he persistently stated that at the initial stages of the investigation all of the interviews had been conducted in the absence of his lawyer, in violation of his rights of defence. He complained that some of the interview records had been used as evidence against him, while others had been declared inadmissible by the trial court.

107. The Court is thus satisfied that the applicant duly raised this complaint in the course of the criminal proceedings against him and therefore rejects the Government’s objection.

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

2. Merits

(a) The parties’ submissions

109. The applicant submitted that, after being arrested on 11 November 2001, he had met his lawyer in private on 21 October 2002. On the day of his arrest, having been subjected to ill-treatment by the police, he made false confessions to a number of robberies and a murder. Despite that fact, the murder and robbery charges were investigated separately until April 2002. He was questioned without a lawyer on a number of occasions under the pretext that the interview concerned the robbery charges for which legal representation was not obligatory. While not contesting that he had voluntarily waived his right to a lawyer when questioned on the robbery charges, the applicant averred however that, being legally unqualified, he had not been fully aware of - and no one had explained to him - the possible negative consequences of waiving that right. In particular, he was not informed that the testimonies he had given in the absence of a lawyer at the pre-trial investigation would prevail over those given at trial. After having obtained an opportunity to consult a lawyer, he had retracted his confessions and consistently pleaded innocent throughout the further proceedings. He further pointed out that the necessary procedural guarantees in order for his waivers to be accepted by the authorities, such as a lawyer’s presence or a video recording, had not been provided. The applicant also stressed that in the course of those interviews, during which he had not been represented, he had been questioned about the murder whereas such a charge required mandatory legal assistance. Moreover, those testimonies were used as evidence by the trial court to secure his conviction. Lastly, the applicant argued that, in the interests of justice, he should have been legally represented from the very outset of the proceedings, given the complexity of the case, the number of serious charges against him and the possible sentence he faced.

110. The Government disagreed. They pointed out that in the proceedings regarding the murder charges, the applicant had always been represented by a lawyer, as legal representation had been mandatory under domestic law. At the initial stage of the investigation of the robberies, the applicant had, of his own volition, waived his right to legal representation and, having been fully informed of his procedural rights, had signed waivers to that effect on 12 November, 12 and 13 December 2001. There had been no reason, under the terms of the domestic legislation, not to accept the waivers. As from 12 March 2002, once all the criminal proceedings against the applicant had been joined, he had been represented by a lawyer during the pre-trial investigation.

(b) The Court’s assessment

111. Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55-57, 27 November 2008 and Dvorski v. Croatia, no. 25703/11, § 80, 20 October 2015).

112. Turning to the facts of the present case, the Court observes that, at the time of the applicant’s arrest, he was suspected of having committed a robbery. On 12 and 13 November 2001 he was questioned as an accused in the context of those proceedings. Before being questioned he waived his right to a lawyer. In this connection, the Court recalls that the waiver of a right guaranteed by the Convention - insofar as it is permissible - must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with its importance (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 28; Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 23, § 51; and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). The robbery of which the applicant had been suspected did not require mandatory legal representation under domestic law. In addition, when admitting as evidence the applicant’s statements concerning his involvement in the robbery, given in the absence of the lawyer, and finding him guilty as charged, the trial court found no grounds to believe that the respective waivers had not been genuine or impermissible (see paragraph 35 above).

113. The Court thus concludes that it was the applicant’s own choice not to have a lawyer during the interviews on the robbery charges, and that the authorities thus cannot be held responsible for the fact that he was not legally represented in the course of the referred investigative actions and, respectively, for the consequences it entailed for the applicant’s conviction.

114. The Court cannot, however, reach the same conclusion as regards the applicant’s defence rights in the context of the murder charges against him in view of the following.

115. The Court observes that, on the day of his arrest, the applicant made statements, from which it became clear that he was testifying to committing not only the robbery but a number of other criminal offences, including aggravated murder. It considers that from that time the investigator had every reason to suspect him of premeditated murder for profit. Accordingly, the applicant was entitled to have access to a lawyer as from the first interview concerning the murder. Furthermore, under domestic law, the applicant was entitled to mandatory legal representation as regards the murder for profit charges as he faced the possibility of life imprisonment.

116. While the Court is unable, on the basis of the documents before it, to decide if the applicant made those statements on his own initiative or at the instigation of the authorities, nothing suggests that once the applicant testified about the murder he was formally admitted to the murder proceedings or that he was offered any legal assistance in connection with that charge. At the same time, it is clear from the additional interview record of 13 November 2001 that, following his testimonies, the applicant was asked further questions regarding the murder. It also follows from the case file - and this was not disputed by the parties - that the applicant had never waived his right to be legally represented when questioned on the murder charges.

117. Further, as indicated by the applicant, on 21 November 2001 he was formally questioned for the first time as a suspect in the murder proceedings and gave a detailed account of the incident at issue. No lawyer was present during that questioning.

118. The above circumstances demonstrate that the applicant’s right of access to a lawyer in the murder proceedings was restricted at least until 22 November 2001, when he was charged with the crime in the presence of his lawyer (see paragraph 14 above). The Court does not discern any compelling reason for restricting the applicant’s right to a lawyer until that date.

119. Furthermore, the Court considers that that restriction prejudiced the applicant’s defence rights. It notes that the relevant part of the judgment of the Court of Appeal of 6 October 2005 shows that, when convicting the applicant for murder, the trial court relied, among other evidence, on testimonies given by the applicant as a suspect and an accused, “including in the presence of a lawyer” (see paragraph 35 above). Having noted that, throughout the trial, the applicant had consistently claimed that he was innocent and retracted all of the self-incriminating statements given at earlier stages of the proceedings, the court dismissed as unsubstantiated his allegation that the relevant statements had been obtained in violation of his rights of defence. It noted that those statements had been made in the presence of a lawyer. That position was upheld, without providing further details, by the Supreme Court of Ukraine, when it dismissed the applicant’s cassation appeal.

120. It thus follows that the applicant’s testimonies, given at the pre-trial stage of the proceedings, were relied on by the courts. However, the general wording of the relevant part of the judgment and, in particular, the absence of any reference to the dates of the interview records, makes it unclear which particular statements by the applicant were admitted as evidence. The Court finds in this context that the phrase “... including in the presence of a lawyer” implies that some of the testimonies admitted in evidence were given in the absence of a lawyer. In those circumstances, there is clearly an inconsistency in the Court of Appeal’s further statement that no violation of the applicant’s rights of defence occurred as all the evidence had been given in the presence of a lawyer.

121. The Court also points out that, in a separate ruling which accompanied the main judgment in the case, the Court of Appeal referred to pieces of evidence which it considered to be inadmissible as they had been obtained in violation of the defendants’ procedural rights, including the rights of defence (see paragraph 36 above). The statements made by the applicant on 11, 12, 13 and 21 November 2001 were not listed among the pieces of inadmissible evidence.

122. In those circumstances, the Court cannot but conclude that when establishing the applicant’s guilt on murder charges, the domestic court relied on statements he had made at the initial stage of the investigation in the absence of a lawyer. Although there was other evidence against the applicant, the significant likely impact of his initial confessions on the further development of the criminal proceedings against him and the fact that they clearly played an important role in the judgments of the domestic courts cannot be ignored by the Court (see Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010).

123. In the light of the foregoing considerations, the Court finds that there has been a violation of Article 6 § 3 (c), in conjunction with Article 6 § 1 of the Convention.

B. Absence of legal representation in connection with the applicant’s cassation appeal

124. Although the Government did not submit any observations on the question of the six-month rule, the Court reiterates that that rule reflects the wish of the Contracting Parties to prevent past decisions from being called into question after an indefinite lapse of time. It thus serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

125. The Court observes that the final decision in the applicant’s criminal case was given by the Supreme Court of Ukraine on 19 October 2006, while the case file suggests that it was in his letter of 21 January 2010, that is some three years later, when the applicant first mentioned to this Court that he had not been represented by a lawyer in the cassation proceedings. The Court therefore concludes that the complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Dudnik and Others v. Ukraine (dec.), nos. 9408/05, 10642/05 and 26842/05, 20 November 2007).

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

126. The applicant also complained that he had been ill-treated by the police; that an unlawful search had been carried out in his house by the investigative authorities; that the decision to put him on the wanted list and to order his arrest had been unlawful; that he had been brought before a judge approximately two months after his arrest; that the refusal to appoint his sister, who had been questioned as a witness, and mother, as his defence counsel had been unlawful; that the length of the criminal proceedings against him had been excessive; that the judicial authorities had failed to grant him enough time to study the case file, had not heard all of the witnesses on his behalf, and had incorrectly interpreted the evidence in his case, which had led to his conviction in spite of his innocence; and that he had been unlawfully placed in the high-security wing of SIZO No. 5 after delivery of the judgment of 6 October 2005. The applicant relied on Articles 3, 5, 6 and 13 of the Convention in making the above complaints.

127. Following communication of the application to the respondent Government, the applicant additionally invoked Article 8 of the Convention in connection with the facts of the present case.

128. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions relied on by the applicant.

129. 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.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

130. 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

131. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage caused by the alleged ill-treatment, the lack of an effective procedure to initiate a review of the lawfulness of his detention and the breach of his defence rights.

132. The Government did not comment on that claim.

133. The Court observes that it has found violations of Articles 3, 5 § 4, and 6 § 3 (c) of the Convention in the present case. As regards the violation of this last provision, the Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 § 3 (c) in the present case does not imply that the applicant was wrongly convicted. The Court notes that Article 445 of the CCP and Section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow for the possibility of a reopening of proceedings (see paragraphs 50-51 above) and considers that the finding of a violation constitutes in itself sufficient just satisfaction (see Lazarenko, cited above, § 65). As regards the violations of Articles 3 and 5 § 4 of the Convention, ruling on an equitable basis, the Court awards the applicant EUR 10,000 in compensation for non-pecuniary damage.

B. Costs and expenses

134. The applicant also claimed EUR 3,085 for the costs and expenses incurred before the Court, to be paid into his lawyer’s account directly. In support of his claim, he submitted a legal assistance contract signed by him and Mr Tarakhkalo on 10 August 2011. It stipulated an hourly fee of EUR 95. According to the contract, payment was due after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in respect of costs and expenses. The applicant also submitted a report of 7 September 2011 on the work completed under the aforementioned contract. It specified that Mr Tarakhkalo had worked on the case for twenty-nine hours (EUR 2,755) and that he had incurred administrative and postal costs totalling EUR 220 and EUR 110 respectively.

135. The Government maintained that, given the nature of the applicant’s complaints, the claim for legal work expenses was exaggerated. They further noted that the applicant had failed to submit proof that the administrative and postal costs had actually and necessarily been incurred as he had provided no relevant bills or receipts.

136. 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, the Court considers it reasonable to award the sum of EUR 1,250, covering costs under all heads (which is equal to EUR 2,100 less EUR 850, the sum received by way of legal aid) to be transferred directly to the account of the applicant’s lawyer.

C. Default interest

137. 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 complaint concerning conditions of detention in Kharkiv SIZO, the lack of access to a procedure whereby the lawfulness of the applicant’s detention during the pre-trial investigation after 7 March 2002 as well as during trial could have been decided by a competent tribunal and the initial restrictions of his defence rights admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in Kharkiv SIZO between 28 July and 13 October 2004;

3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of an effective procedure for judicial review of the lawfulness of the applicant’s pre-trial detention after 7 March 2002 as well as of his detention during the trial;

4. Holds that there has been a violation of Article 6 § 3 (c), in conjunction with Article 6 § 1, of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage sustained by the applicant in view of the violations of Articles 3 and 5 § 4 of the Convention;

(ii) EUR 1,250 (one thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer, Mr Tarakhkalo;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Holds that the finding of a violation of Article 6 § 3 (c) of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant in this regard;

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

Done in English, and notified in writing on 17 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nussberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZAKSHEVSKIY v. UKRAINE - 7193/04 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 279 (17 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/279.html Cite as: [2016] ECHR 279