European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KONOPLYOV v. UKRAINE

(Application no. 43374/14)

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2021

 

 

 

 

 

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

 

In the case of Konoplyov v. Ukraine,

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

          Arnfinn Bårdsen, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 43374/14) 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 Valeriy Valeriyovych Konoplyov (“the applicant”), on 2 June 2014;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3 of the Convention concerning the applicant’s confinement in a metal cage during court hearings, and under Article 5 of the Convention, concerning the alleged unlawfulness of his detention pending trial, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 17 December 2020,

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

INTRODUCTION

The case concerns the applicant’s complaint about his confinement in a metal cage during court hearings and the alleged unlawfulness of his detention pending trial, under Articles 3 and 5 of the Convention.

THE FACTS

1.  The applicant was born in 1967 and, at the time of his most recent communication with the Court, was imprisoned in Simferopol. The applicant was represented by Ms A.R. Martynovska, a lawyer practising in Kyiv.

2.  The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

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

4.  Prior to his arrest the applicant was the mayor of the town of Inkerman.

5.  On 13 August 2012 the applicant was arrested on suspicion of bribery.

6.  On 16 August 2012 the Sevastopol Leninsky District Court remanded the applicant in custody at the Simferopol Pre-Trial Detention Centre (SIZO). The court referred to various circumstances as grounds for its decision, most notably the risk that, if left at liberty, the applicant would use his position and connections to influence witnesses and his co-defendant, who remained at liberty.

7.  On 1 November 2012 the Sevastopol Balaklava District Court (“the trial court”) committed the applicant for trial and decided that he should remain in custody. It did not set any time-limit for his detention.

8.  According to the applicant, he was kept in a metal cage in the course of his trial. In his submission, on three occasions, the last being on 4 December 2013, he asked to be allowed to sit outside the cage, next to his lawyer but the trial court rejected his requests. In particular, on the last‑mentioned date the trial court noted in its decision that the replacement of metal cages with glass cabins in the courtrooms had been entrusted to the State Judicial Administration. The trial court further observed that the expenditure for that purpose had not been budgeted for the year 2013.

9.  According to the case-file material, hearings in the applicant’s case in 2013 took place on at least seven occasions, namely on 25 January, 19 February, 13 March, 9 April, 13 September, 13 November and 4 December.

10.  On 3 February 2014 the trial court convicted the applicant of bribery and sentenced him to five years’ imprisonment. According to the applicant, that sentence was not appealed against and became final.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

11.  The applicant complained that he had been confined in a metal cage during the court hearings which had taken place in 2013. 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.    Admissibility

12.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

13.  The applicant reiterated his complaints as outlined in the application form, namely that he had been confined in a metal cage during the court hearings which had taken place in 2013. He added that he had been a public figure and that his trial had attracted media attention. His presence in the cage had had an adverse effect, presenting him as a particularly dangerous criminal. The fact that the hearings had been attended by his subordinates and family members had caused him suffering and humiliation.

14.  The Government submitted that they had been unable to access the documents relating to the applicant’s complaint in view of their being located in an area that was not under their control. Nevertheless, they provided observations on the merits of the complaint, notably acknowledging that the applicant had been confined in a metal cage during the trial. The Government further argued that the trial court had rejected the applicant’s requests to be let out of the cage on the grounds that he had resisted arrest, had tried to escape and had insulted police officers on 13 August 2012. They added that the measure in question had been taken in the interests of public safety.

15.  As the Court has previously found, holding a person in a metal cage during a trial - having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society - constitutes in itself an affront to human dignity in breach of Article 3 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 138, 17 July 2014).

16.  The Court observes that holding defendants in criminal proceedings, even prior to any conviction, in metal cages during a court hearing appears to have been standard procedure in Ukraine (compare Titarenko v. Ukraine, no. 31720/02, §§ 41 and 63-64, 20 September 2012; and see, as a recent authority, Korban v. Ukraine, no. 26744/16, §§ 132-36, 4 July 2019).

17.  It further notes that in the present case the Government did not dispute the fact that the applicant had been held in a metal cage during the hearings.

18.  Having regard to the insufficient financing preventing the authorities from replacing the metal cages in courtrooms in 2013, and in the light of its previous findings (see paragraphs 8 and 16 above), the Court does not find it unreasonable to assume that on the hearing days indicated in paragraph 9 above the applicant was confined in a metal cage.

19.  As regards the Government’s argument that the applicant’s confinement in a metal cage had been examined by the trial court and found to be justified in view of his prior behaviour in the course of his arrest in 2012, and in the interests of public safety, the Court notes that the available material before it does not suggest that the trial court had in fact assessed the existence of any security risk in the courtroom during the trial. In the absence of any evidence in support of the Government’s argument, the Court rejects it.

20.  In the light of the foregoing, the Court does not see any reason in the present case to depart from its earlier findings. Accordingly, there has been a violation of Article 3 of the Convention.

II.    ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

21.  The applicant complained under Article 5 § 1 of the Convention that the decision of the trial court of 1 November 2012 committing him for trial had not set any time-limit for his detention.

The relevant parts of Article 5 § 1 of the Convention read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

A.    Admissibility

22.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

23.  The applicant maintained his complaint as outlined in the application form, namely that his detention pursuant to the decision of the trial court of 1 November 2012 had been unlawful.

24.  The Government did not comment on that issue.

25.  The Court observes that the applicant was held in detention on remand on the basis of the above-mentioned decision of the trial court until 3 February 2014, which amounted to a period of one year and five months. The Court further observes that in Kharchenko v. Ukraine (no. 40107/02, §§ 73-76, 10 February 2011) it found a violation in similar circumstances. The Court does not see any reason in the present case to depart from those findings. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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.”

27.  The applicant claimed 18,000 euros (EUR) in respect of non‑pecuniary damage. The Government argued that that claim was unsubstantiated.

28.  Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

29.  The applicant also claimed 5,000 United States dollars for the costs and expenses incurred before the domestic courts. The Government contested the above claim as not being supported by relevant documentary evidence.

30.  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.

31.  The Court observes that the applicant failed to present any documentary evidence within the prescribed time-limit. It therefore makes no award under this head.

32.  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 application admissible;

2.      Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s confinement in a metal cage during court hearings;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of his detention pending trial;

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

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

Done in English, and notified in writing on 28 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                   Arnfinn Bårdsen
Deputy Registrar                                                                       President