FIFTH SECTION    CASE OF SIZAREV v. UKRAINE (Application no. 17116/04)      JUDGMENT    STRASBOURG  17 January 2013 FINAL 17/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Sizarev v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 11 December 2012,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 17116/04) 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 Konstantin Konstantinovich Sizarev (“the applicant”), on 14 May 2004.2. The Ukrainian Government (“the Government”) were most recently represented by their Agent, Mr Nazar Kulchytskyy.3. The applicant complained, in particular, about the lawfulness and length of his pre-trial detention, the conditions in which he had been detained, the failure of the authorities to ensure his physical safety in detention and to duly investigate the incident of assault of which he had complained, as well as about being handcuffed while in hospital.4. On 21 March 2011 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1958 and lives in Yevpatoriya.6. He formerly worked as an assistant in a local court. Before the events in question, he did not have a criminal record.A. Criminal proceedings against the applicant and his detention7. On 3 October 2003 a Mr K. complained to the police that the applicant had beaten him up.8. Although it initially found no reason to prosecute, on 24 February 2004 the Yevpatoriya City Prosecutor’s Office opened a criminal case against the applicant on suspicion of the deliberate infliction of bodily harm of a medium degree of severity on Mr K. (an offence punishable by a maximum of three years’ imprisonment – see paragraph 82 below).9. On 18 March 2004 the applicant was ordered not to leave town.10. On 25 March 2004 he appointed his wife, Ms D., as his representative.11. From 8 to 29 April 2004, the applicant was on sick leave owing to a leg injury. As a result, he failed to appear before the investigator in answer to a summons.12. On 19 April 2004 the investigator applied to the Saky City Court (“the Saky Court”) with a request for the applicant’s pre-trial detention as a more appropriate preventive measure, given his failure to comply with the summons and also the fact that his actual place of residence was unknown.13. On 22 April 2004 the Saky Court ordered the police to ensure the applicant’s appearance.14. On the morning of 27 April 2004 the applicant was arrested.15. On the same date the Saky Court allowed the investigator’s applications at a hearing which was attended by the applicant and the prosecutor. The applicant’s request for his wife to be present was, however, rejected.16. The Saky Court noted that while pre-trial detention was normally ordered in cases where the likely penalty was more than three years’ imprisonment, it was possible to make an exception. The court noted that the applicant had failed to appear in response to a number of the investigator’s summonses, that he did not actually live at the address he had given to the investigating authorities as his place of residence, and that he had left Yevpatoriya on many occasions without informing the investigator, and in breach of the obligation not to leave town. Furthermore, the victim, Mr K., complained that the applicant had threatened him. The court observed that all those factors sufficed to consider the applicant’s case exceptional within the meaning of Article 155 § 1 of the Code of Criminal Procedure and to order pre-trial detention as a preventive measure pending his trial (see paragraph 84 below).17. Also, on 27 April 2004, Ms D. lodged an appeal against that decision on the applicant’s behalf. She submitted that putting the applicant in pre‑trial detention was contrary to the criminal procedural legislation given the minor nature of the crime in question. She further argued that the Saky Court had failed to take into account the fact that, as confirmed by medical records, the applicant had been undergoing medical treatment since 8 April 2004 and therefore had a valid reason for his failure to attend the investigation. She also pointed out that the court had disregarded the fact that the applicant had two children of minor age and that she herself (as his wife) was disabled. Lastly, Ms D. complained that the hearing of the Saky Court on 27 April 2004 had taken place in her absence.18. On 28 April 2004 the police questioned Ms D.

Article of the Convention at issue: Article 5
Outcome: violation