Quick orient — first passages from judgment

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

Rait Maruste, President, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, and Stephen Phillips , Deputy Registrar ,

The case originated in an application (no. 5797/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Dmitriyevich Rudenko (“the applicant”), on 21 January 2005.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

The applicant alleged, in particular, that he had been held in detention unlawfully, for an unreasonable period of time and without adequate judicial review. He also complained that the criminal proceedings against him had lasted too long.

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Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Registrar,

Having deliberated in private on 2 November 2010,

Delivers the following judgment:

PROCEDURE

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

By a partial decision of 22 September 2009, the Court decided to adjourn the examination of the above complaints and declared the remainder of the application inadmissible. In accordance with Protocol No. 14, the application was allocated to a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and lives in Sevastopol.

A. Criminal proceedings against the applicant

On 29 August 2002 the applicant was detained on suspicion of illegal drug possession and attempted drug smuggling. He was taken to Sevastopol Temporary Detention Centre (“the Sevastopol ITT”), where he was held until his release in December 2005 (see paragraph 24 below).

In August and September 2002 criminal proceedings were instituted against four other persons on similar charges.

On 31 August 2002 the Leninskyy District Court of Sevastopol (“the Leninskyy Court”) extended the applicant’s detention to eight days.

On 5 September 2002, following a hearing in which the applicant’s lawyer participated, the court allowed the prosecutor’s request for the applicant’s detention for two months. It examined the lawyer’s arguments about the applicant’s frail health – second-degree hypertension and cerebral atherosclerosis – but found no indication that this was incompatible with detention. On the other hand, the court noted that if left at liberty the applicant might abscond, obstruct justice or reoffend.

On 25 October 2002, after a hearing in which the prosecutor participated, but at which the applicant and his lawyer were absent, the Leninskyy Court extended the detention to four months at the investigator’s request. It justified the extension with the need to carry out further investigation and the potential risk of the applicant’s absconding.

On 23 December 2002, following a hearing which was also held in the absence of the applicant and his lawyer, but in which the prosecutor participated, the Sevastopol City Court of Appeal (“the Court of Appeal”) allowed the prosecutor’s request for an extension of the detention to six months. It justified it with the fact that investigation was yet to be completed, the seriousness of the charges against the applicant and the inherent risk of his absconding. This ruling of the court was final.

On 21 February 2003, following a hearing in which the applicant’s lawyer participated, the Court of Appeal extended, by a final ruling, the applicant’s detention to nine months (until 28 May 2003) at the investigator’s request. The court relied on the same arguments as before. It refused the lawyer’s request for the applicant’s release on health grounds, referring to a lack of evidence that his state of health was incompatible with detention.

On 15 May 2003 the pre-trial investigation was declared complete.

From 19 May to 9 June 2003 the applicant and his lawyer studied the case file.

The applicant complained to the prosecution authorities on a number of occasions that his continued detention after 28 May 2003 had been unlawful, referring to the fact that it was not covered by any decision. His complaints were forwarded to the Leninskyy Court, where they allegedly remained without response.

On 10 June 2003 the charges against the applicant, as well as against the other co-accused, were extended to participation in a criminal organisation and unlawful production, possession and smuggling of drugs and drug precursors by an organised group.

On 12 June 2003 the pre-trial investigation, which had been resumed following the modification of the charges, was declared complete.

From 17 June to 18 July 2003 the applicant and his lawyer studied the case file.

On 30 July 2003 the criminal file was sent to the Leninskyy Court.

On 29 August 2003 the court held a preparatory hearing for the trial, during which the applicant unsuccessfully requested to be released subject to an undertaking not to abscond. He argued that his health was too frail and submitted medical documents to that regard. Furthermore, the applicant noted that he had a family and a permanent place of residence, was of rather advanced age, had only positive character references and no previous criminal record. The case file does not contain a copy of the aforementioned ruling of the court. According to the applicant, it disregarded the issue of his detention altogether.

According to a letter of the Sevastopol City Council of Judges of 31 March 2005 in reply to the applicant’s complaint about the length of the criminal proceedings against him, the duration of these proceedings was caused by: the significant number of lawyers (seven), some of whom had joined the examination of the case late and required additional time to study the case file; the breakdown of a tape recorder after a part of the trial had been recorded on it; and the expiry of the presiding judge’s term of office and the reassignment of the case to a different judge.

On 15 July 2005 the applicant asked the Court of Appeal to review the lawfulness of his detention after 28 May 2003. He noted that after that date his detention had not been covered by any court decision against which he could appeal in compliance with the criminal-procedure legislation.

On 20 July 2005 the Court of Appeal forwarded the applicant’s request to the Leninskyy Court “for a procedural decision to be taken”.

On 22 December 2005 the Leninskyy Court released the applicant subject to an undertaking not to abscond, at his lawyer’s request. The court established that the applicant’s health had deteriorated in detention. It also took note of the fact that his wife was disabled and needed his support. The court noted that the applicant had participated in military operations, for which he had received numerous government awards. It found no indication that he would attempt to obstruct justice or abscond if released.

The criminal proceedings against the applicant remain pending before the first-instance court. According to the information provided by the Government, since the commencement of the trial in July 2003 about fifty hearings have taken place, five of which were in 2003; fourteen in 2004; nine in 2005; fifteen in 2006; and eight in 2007. Overall, the hearings were adjourned on over eighty occasions, with the reasons for about thirty such adjournments (in total for one year and ten months) being unknown. Not a single hearing has been held since the end of 2007, mainly because of the repeated absence of witnesses and the co-defendants’ lawyers. Between 2007 and 2009 the Leninskyy Court issued seven orders for the compulsory presence of witnesses (between eight and eighteen persons) to be ensured by the police. It is not known whether those orders were enforced.

The most recent development in the trial known to the Court is the expiry of the mandate of the presiding judge in November 2009.

B. The applicant’s state of health and medical treatment

1. As regards the hypertension

Since 1975 the applicant has been suffering from hypertension and cerebral atherosclerosis. In 2000, his condition was diagnosed as “second degree hypertension”.

During the period of his detention in the Sevastopol ITT from 29 August 2002 to 22 December 2005 an ambulance was called for the applicant at least fifty times on account of his hypertension.

The ITT administration kept a medical logbook of the applicant’s blood pressure. According to the entries for the period from 9 November 2002 to 28 May 2004 (signed by the acting chief of the ITT), his blood pressure was taken almost on a daily basis.

On 12 December 2002 the chief of the ITT sent a note to the applicant’s lawyer, at the latter’s request, in which he stated that between September and December 2002 the medical attendant of the ITT had examined the applicant and provided him with medical assistance for hypertension on ten occasions.

On 19 December 2002 the applicant was examined by a therapist who diagnosed a hypertensive crisis, prescribed some medication and recommended that he be treated as an in-patient.

On 21 December 2002 the applicant underwent another medical examination – by a leading cardiologist in Sevastopol Hospital no. 1 (“Hospital no. 1”), who confirmed the aforementioned diagnosis and recommendation and provided him with medical assistance.

On 17 January 2003 the applicant was examined in Sevastopol Hospital no. 9. The doctors found that he was suffering from cerebral hypertension of the second degree, ischaemic heart disease, and atherosclerotic cardiosclerosis with heart rhythm disturbances. After the applicant had received medical assistance, he was taken back to the ITT.

On 30 January 2003 the applicant was taken to Hospital no. 1, where he stayed until 6 February 2003 receiving in-patient medical treatment.

On 3 March 2003 he complained to the Sevastopol prosecutor that his medical condition was incompatible with detention.

On 29 August 2003 the Leninskyy Court ordered a medical examination of the applicant in the ITT by specialists of Hospital no. 1; this took place on an unspecified date.

On 19 July 2004 the applicant unsuccessfully requested that the Leninskyy Court order an expert medical examination with a view to establishing whether he was fit for detention.

On 16 December 2005 he underwent another medical examination in Hospital no. 1. The doctors diagnosed him with third-degree hypertension at the crisis stage, ischaemic heart disease, coronary sclerosis and cardiosclerosis and recommended his urgent hospitalisation.

However, the applicant objected to his hospitalisation until the completion of the court hearing scheduled for 22 December 2005.

In its ruling of 22 December 2005 ordering the applicant’s release, the Leninskyy Court noted that his health had deteriorated during detention (see paragraph 24 above).

After his release, the applicant received in-patient treatment for hypertension in Hospital no. 1 from 29 December 2005 to 20 January 2006.

On 8 February 2006 he was examined by the Sevastopol City Medical and Sociological Expert Commission and was recognised as falling into the “third category” of disability (the mildest) indefinitely on the grounds of his “general state of health”.

On 4 December 2009 Mr D., who presented himself as the medical attendant working in the Sevastopol ITT at the time the applicant was detained there, gave written explanations at the Government’s request, following the communication of the application to the latter. According to him, he had closely surveyed the applicant’s medical condition, namely, the level of his blood pressure, and had administered pressure-lowering medication whenever required. In those cases where the medication had not had the necessary effect, an ambulance had been called.

2. As regards the hearing problems

According to the applicant, his hearing started to deteriorate at the beginning of 2003.

On 17 May 2004 an otologist examined and diagnosed him with acute sensorineural hearing loss in both ears and prescribed medication.

In September 2009 the applicant underwent surgery on account of exostosis (formation of new bone on the surface of a bone) of both ear canals.

II. RELEVANT DOMESTIC LAW

Before the amendment of 21 June 2001, Article 244 of the Code of Criminal Procedure (“the CCP”) required trial courts to give reasons for changing a preventive measure in its ruling delivered at the preparatory hearing. The aforementioned amendment lifted that requirement.

The other relevant provisions of the CCP (as worded at the material time, namely: before the amendments of 25 April 2003, which entered into force on 25 July 2003) are summarised in the judgment Nikolay Kucherenko v. Ukraine, no. 16447/04, §§ 22-23, 19 February 2009.

THE LAW

I. SCOPE OF THE CASE

In reply to the Government’s observations, the applicant raised a complaint under Article 3 of the Convention regarding the material conditions of his detention in the Sevastopol ITT. The Court notes that this new belated complaint is not an elaboration of the applicant’s original complaints on which the parties have commented. The Court considers, therefore, that it is not appropriate to take this matter up separately in the present context (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

The applicant complained about the overall length of his pre-trial detention and the lack of adequate judicial review of its lawfulness. He also alleged that his detention after 28 May 2003 had been unlawful, not having been covered by any order in that regard. He relied on Article 5 of the Convention, the relevant parts of which read as follows:

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

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

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

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

A. Admissibility

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

B. Merits

1. Article 5 § 1 of the Convention

The applicant contended that he had been detained unlawfully between 28 May 2003 and 22 December 2005.

The Government disagreed, arguing that the contested detention had been based on adequate domestic legislation.

The Court notes that on 28 May 2003 the term of the applicant’s detention, ordered for a limited period at the pre-trial investigation stage, expired (see paragraph 12 above). At that point he was in the process of studying the case file (started on 19 May and finished on 9 June 2003) and therefore his detention during that period was not required to be authorised by any decision under the domestic legislation then in force (follow the reference given in paragraph 48 above).

Subsequently, the pre-trial investigation was resumed and went on for three days (10-12 June 2003), after which a period of apparent inactivity followed until 17 June 2003, when the applicant was given further access to the case file (see paragraphs 17-18 above). During that week the applicant continued to be detained without any decision having been issued in that regard in spite of the provisions of Article 156 of the Code of Criminal Procedure (“the CCP”) requiring the immediate release of a detainee in the event of the expiry of the maximum period of detention previously ordered and not duly extended (see paragraph 48 above).

The Court further observes that the applicant’s detention during the subsequent month (between 17 June and 18 July 2003) was, again, not required to be authorised by any decision, because the applicant was studying the case file.

The applicant’s detention continued for another twelve days without being covered by any decision, contrary to the CCP provisions, until the case was sent to the trial court on 30 July 2003. At that point the pre-trial investigation was formally considered complete, whereas the judicial proceedings had not yet commenced.

The Court notes that the Ukrainian legislation did not (and does not) provide for any basis for pre-trial detention after the transfer of a case to a trial court and before the preparatory hearing for the trial (see paragraph 48 above). In the present case the applicant was in such a situation, being detained without any decision from 30 July to 29 August 2003, that is, for another month.

In sum, the applicant’s detention between 28 May and 29 August 2003 was not covered by any judicial decision: contrary to the domestic law (twenty days); in compliance with the law not requiring any authorisation for detention while a case file is being studied (forty-three days); and against the background of a legal vacuum (thirty days).

As to the subsequent period, between 29 August 2003 and 22 December 2005, the sole basis for the applicant’s detention was apparently the ruling of the Leninskyy Court of 29 August 2003 commencing the trial, by which the preventive measure chosen earlier was upheld. Even though the Court does not have a copy of that ruling in the case file, it is inclined to believe the applicant’s allegation of a lack of any reasoning concerning his detention, given the fact that such reasoning was not explicitly required under the domestic legislation (see paragraph 47 above). Moreover, the Government did not argue the point and previous case-law demonstrates that it was usual practice.

The Court notes that it has previously examined similar situations in other cases against Ukraine and with respect to the same legal framework. The Court has found continued pre-trial detention not covered by any order to be incompatible with the requirements of lawfulness under Article 5 § 1 given that there was no judicial decision ordering such detention (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 48-51, 6 November 2008, and Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, §§ 70-73, 27 November 2008). As regards the consecutive period of detention under the judicial order, the Court found that judicial detention orders for indefinite periods of time and without indication of the grounds for such detention did not afford the applicant the adequate protection from arbitrariness which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 (see Yeloyev, cited above, §§ 52-55).

The Court sees no reason to depart from its reasoning given in the above-mentioned judgments and concludes that the applicant’s detention in the present case between 28 May 2003 and 22 December 2005 was in breach of Article 5 § 1 of the Convention.

2. Article 5 § 3 of the Convention

The applicant maintained that the length of his detention was unjustified and unreasonable.

The Government disagreed. They submitted that the overall duration of the detention could not be considered unreasonable given the complexity of the case and the numerous investigative measures that had to be undertaken. They further contended that the applicant’s continuous detention was a justified preventive measure given the seriousness of the charges against him and the inherent risk of his absconding or hindering the investigation.

The Court notes that the applicant was detained on 29 August 2002 and released on 22 December 2005 subject to an undertaking not to abscond. Accordingly, his pre-trial detention lasted for three years, three months and twenty three days, which was not short in absolute terms.

Given the fact that, when extending the applicant’s detention, the domestic courts essentially relied on the gravity of the charges against him and the presumably inherent risk of his absconding, without due assessment of any other circumstances of his particular case, the Court considers that his detention lacked “relevant and sufficient” grounds (see, among many others, Doronin v. Ukraine, no. 16505/02, §§ 62-63, 19 February 2009).

This consideration is sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.

3. Article 5 § 4 of the Convention

The applicant submitted that his detention had not been subjected to adequate judicial review for the following reasons: firstly, the hearings held during the pre-trial investigation stage at which the decisions were taken to extend it until 28 May 2003 had mostly taken place in his and his lawyer’s absence; and, secondly, there had been no decision covering his subsequent detention and he had therefore had no document to contest.

The Government disagreed. They noted that all of the applicant’s requests for release, during both the pre-trial investigation stage and the trial, were duly and speedily examined. Moreover, on 22 December 2005 the trial court allowed his request and released him.

The Court reiterates that proceedings concerning detention should in principle meet the basic requirements of a fair trial regardless of whether the court decisions impose or extend detention or test its lawfulness. Such proceedings must be adversarial and must always ensure equality of arms between the parties (see Trzaska v. Poland, no. 25792/94, § 74, 11 July 2000).

Turning to the present case, the Court notes that on 25 October and 23 December 2002 the courts allowed the prosecutor’s requests for extension of the applicant’s detention for a total of four months following hearings held in the presence of the prosecutor, but in the absence of both the applicant and his lawyer. There is no indication in the case file that the applicant or his lawyer waived their right to participate in the above hearings. Accordingly, the guarantee of equality of arms in the course of those two hearings was not respected since the applicant had no opportunity to comment on the arguments or contest the reasons invoked by the prosecuting authorities to justify his detention.

In so far as the applicant’s detention between 28 May (the expiry of his judicially ordered pre-trial detention) and 29 August 2003 (the committal hearing) is concerned, the Court does not lose sight of the fact that, during that period, the applicant did not lodge any formal applications for release with a court. It notes however that, as stated above (see paragraph 59), the detention at issue was not covered by any decision (see, conversely, Shalimov v. Ukraine, no. 20808/02, §§ 9, 54 and 57, 4 March 2010, where the complained-of detention had been ordered by prosecutor’s decisions amenable to judicial challenge and therefore the applicant’s complaint under Article 5 § 4 in that regard was rejected for the failure to use that remedy). Furthermore, the applicant’s detention during the mentioned period was for the most part – seventy-three of ninety-three days (see paragraph 59 above) – either in compliance with the domestic law (the period during which the case file was studied) or not legally regulated at all (the period after the transfer of the case from the investigation authority to the trial court and prior to the preparatory hearing).

Accordingly, the Court concludes that the applicant had no effective remedy available to have the lawfulness of his detention during those seventy-three days reviewed.

As to the remaining twenty days (see paragraphs 55, 57 and 59 above), the applicant’s detention continued in spite of the requirement for his immediate release – by virtue of Article 156 of the CCP and not subject to a separate request for release – about which the applicant unsuccessfully complained to the prosecution (see paragraph 15 above). The Court therefore considers that, under the circumstances, he was under no obligation to formally apply for his release.

In the light of all the foregoing, the Court finds a violation of Article 5 § 4 of the Convention on account of the court hearings of 25 October and 23 December 2002 held in the absence of both the applicant and his lawyer, and the inability of the applicant to effectively contest the lawfulness of his detention between 28 May and 29 August 2003.

As regards the period during the judicial proceedings (between 29 August 2003 and 22 December 2005), the Court observes that under the domestic law the applicant was entitled to lodge various requests with the trial court, including those for his release. The Court is not, however, aware of any such requests by the applicant other than the one which he introduced in July 2005 and which was allowed in December that same year. It cannot speculate whether or not the examination of those requests would have been in compliance with Article 5 § 4 of the Convention.

The Court therefore finds that there has been no violation of Article 5 § 4 of the Convention in respect of the alleged lack of an effective procedure at the applicant’s disposal for judicial review of the lawfulness of his detention between 29 August 2003 and 22 December 2005.

III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention. He further complained under Article 13 of the lack of an effective remedy for the length-of-proceedings complaint. The provisions read as follows in the relevant part:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...

Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

The applicant maintained his complaints.

The Government contested them.

The Court reiterates that the reasonableness of the length of these proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among the extensive case-law on the matter, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 II, and Lugovoy v. Ukraine, no. 25821/02, § 33, 12 June 2008).

The Court notes that the criminal proceedings against the applicant in the present case commenced on 29 August 2002 and remain pending before the first-instance court. They have therefore lasted for over seven years and eight months, of which the pre-trial investigation took eleven months, and for the remaining six years and nine months the case has been before the trial court. Furthermore, as submitted by both parties, there has not been a single hearing on the case since 2007 (see paragraph 25 above).

The Court has frequently found violations of Articles 6 § 1 and 13 of the Convention in cases raising issues similar to the one in the present case (see, for example, Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 66 and 70, 12 March 2009).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

There have accordingly been breaches of Articles 6 § 1 and 13 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained under Article 3 of the Convention that he had not received adequate and sufficient medical treatment during his detention. He submitted, in particular, that there had been no medical staff in the Sevastopol ITT, where he had been detained. The applicant contested the veracity of the explanations of Mr D. (see paragraph 43 above), alleging that the latter had been working in the ITT as a guard, not as a medical attendant. In substantiation, he referred to the fact that the extract from the medical logbook had been signed by the acting chief of the ITT (see paragraph 29 above), not by a medical specialist, for there had been none. Lastly, the applicant insisted that his health condition had warranted his hospitalisation and in-patient treatment, which, although this was confirmed by doctors on many occasions, had been denied to him.

The Government contended that the applicant’s condition had received close attention and that adequate medical assistance had been provided, each time it had been needed, by the ITT medical attendant, an ambulance team, or doctors from the local hospitals. They further noted that the applicant had refused urgent hospitalisation following his medical examination on 16 December 2005.

The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 XI).

In the present case the applicant had two major concerns regarding his health during detention: he was suffering from hypertension and his hearing was deteriorating.

The Court notes that the applicant was under constant medical supervision during the whole period of his detention in respect of the hypertension. Despite maintaining that there had been no qualified medical staff at the ITT, the applicant neither contested the fact that his blood pressure was measured almost on a daily basis nor alleged that the ITT administration had failed to provide him with medication or refused to call an ambulance for him whenever requested.

The medical evidence before the Court rather shows that during his detention the applicant regularly sought, and obtained, medical assistance in respect of his hypertension. Thus, in addition to the medical aid provided to him by the ambulance doctors on at least fifty occasions, he was examined by at least six therapists and cardiologists in two different local hospitals, received in-patient medical treatment in one of those hospitals in January and February 2003, and refused recommended hospitalisation in December 2005.

Furthermore, although disputing the adequacy of his treatment, the applicant did not even comment on what that treatment had actually been and why he considered it inadequate. Neither did he refer to any specific occasion when he had been in need of medical aid but had not received any.

The Court therefore finds no reason to consider that the medical assistance given to the applicant during his detention was inadequate or insufficient. The fact that his health deteriorated (namely, his hypertension increased from the second to the third degree – see paragraphs 38 and 40 above) is not in itself an indication to the contrary, for such deterioration could well have been within the natural course of the condition given its rather long history (see paragraph 27 above).

As to the gradual hearing loss suffered by the applicant starting from the beginning of 2003, the Court notes that he was examined by an otologist in May 2004 and received some medication. In any event, given the fact that after his release in December 2005 the applicant waited for another four years before seeking medical intervention in respect of his hearing loss (see paragraph 46 above), the Court does not consider that his condition during detention could be considered as having reached the severity threshold for Article 3 to be called into play.

It follows that the applicant’s complaint of the alleged insufficiency and inadequacy of the medical care provided to him in detention in respect of both his hypertension and hearing loss is manifestly ill-founded and should therefore be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 1,000,000 in respect of non-pecuniary damage.

The Government considered that there was no causal link between the pecuniary damage claimed and the violations alleged. They further considered the claim for non-pecuniary damage unsubstantiated and excessive.

The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant also claimed EUR 30,000 for costs and expenses.

The Government considered that the applicant had failed to demonstrate that the costs claimed were reasonable and had actually been incurred.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the applicant’s complaints under Article 5 §§ 1, 3 and 4, as well as Articles 6 § 1 and 13, of the Convention admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention between 28 May 2003 and 22 December 2005;

Holds that there has been a violation of Article 5 § 3 of the Convention;

Holds that there has been a violation of Article 5 § 4 of the Convention on account of the court hearings of 25 October and 23 December 2002 and the applicant’s inability to effectively contest the lawfulness of his detention between 28 May and 29 August 2003;

Holds that there has been no violation of Article 5 § 4 of the Convention in respect of the alleged lack of an effective procedure at the applicant’s disposal for judicial review of the lawfulness of his detention between 29 August 2003 and 22 December 2005;

Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the criminal proceedings against the applicant;

Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 (length of proceedings);

Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable;

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

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

Done in English, and notified in writing on 25 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste
Deputy Registrar President

RUDENKO v. UKRAINE - 5797/05

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RUDENKO v. UKRAINE - 5797/05

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