FIFTH SECTION       CASE OF KLEUTIN v. UKRAINE (Application no. 5911/05)       JUDGMENT   STRASBOURG  23 June 2016 FINAL 23/09/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Kleutin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, André Potocki, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, Mārtiņš Mits, judges, Sergiy Goncharenko, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 31 May 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 5911/05) 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 Denis Vasilyevich Kleutin (“the applicant”), on 7 January 2005.2. The applicant was represented by Mr E. Markov, a lawyer practising in Strasbourg. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.3. The applicant alleged that he had been beaten by the police whilst being apprehended and that there had been no effective investigation into this fact. He also stated that the conditions of his detention in Odesa SIZO were inhuman and degrading. He further complained about his unlawful arrest and detention on remand as well as about the authorities’ failure to conduct an effective judicial review of the lawfulness of his detention.4. On 26 May 2014 the application was communicated to the Government. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1979 and lives in Odesa.A. Criminal proceedings against the applicant6. On 22 January 2004, on the basis of a pre-investigation inquiry, criminal proceedings were instituted against the applicant and two other persons in connection with a robbery committed the night before.7. On the same day, the investigator arrested the applicant and drew up an arrest report, the relevant parts of which read as follows:“On 22 January 2004 at 1.40 p.m., investigator Ya., in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained Kleutin Denis Vasyliyovych ... on suspicion of commission of the crime provided for by Article 186 of the Criminal Code of Ukraine. ...”8. On 23 January 2004 the investigator applied to the Prymorsky District Court of Odesa (“the District Court”) with a request to place the applicant in pre-trial detention. He noted that the applicant had been suspected in having committed a serious crime and, if released, might abscond in order to avoid the investigation and prevent the establishment of the truth in the case.9. On 24 January 2004, in the presence of the prosecutor and in the absence of the applicant, the District Court remanded the applicant in custody without setting its maximum duration. The court’s order referred to the investigator’s statements as to the gravity of charges, the applicant’s previous convictions, and the risk of his committing another crime, absconding, impairing the establishment of truth and obstructing the course of justice. The applicant did not appeal against this decision.10. On 18 March 2004, in the presence of the prosecutor and in the absence of the applicant, the District Court allowed the investigator’s request and extended the applicant’s detention for one month in view of the need to carry out certain investigative steps to complete the investigation. The court found that the arguments of the investigator in this respect were reasonable.11. On 8 April 2004 the investigation was completed and the criminal case was sent for trial.12. On 5 May 2004, in the committal hearings, the District Court made no ruling in respect of the applicant’s further detention. It noted that no applications had been lodged by the parties to the proceedings and found “no violations of the requirements of Article 237 of the Code of Criminal Procedure of Ukraine (“the CCP”) in the course of the preliminary investigation of the case”.13. On 18 June 2004 the District Court remitted the criminal case for additional investigation, without addressing the issue of applicant’s extended detention.14. On 18 April 2005 the District Court again remitted the criminal case for additional investigation. It made no ruling in respect of the applicant’s extended detention.15. On 13 August 2005 the additional investigation was completed and the case was sent to the District Court for trial.16. On 18 August 2005 the applicant requested that the District Court change the preventive measure to an obligation not to abscond.17. On 15 September 2005, in the committal hearings, the District Court maintained the applicant’s detention without giving any reason or setting any time-limits.18. On 7 November 2005, in June, July and on 16 October 2006 and again on 6 March 2007, the applicant applied to the District Court in writing to change the preventive measure into a non-custodial one. In his request of July 2006, he argued, inter alia, that he did not represent a danger to society, had a registered place of residence and was about to start a new job at the time when he was arrested. In reply to the applicant’s request of 7 November 2005, the court informed the applicant that all petitions should be “lodged and examined at a hearing”.19. On 8 June 2007 the applicant was found guilty of premeditated robbery as part of a group and of involving of minors in a crime and was sentenced to five years’ imprisonment.20. On 15 November 2007 the Odesa Regional Court of Appeal dismissed an appeal lodged by the applicant.21. On 2 June 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.22. On 22 January 2009 the applicant finished serving his sentence and was released.B. Alleged ill-treatment of the applicant by the police on 22 January 2004 and investigation thereof23. On 22 January 2004, the applicant was apprehended at his apartment and taken to the police station where he was subsequently arrested. The parties provided different accounts of the events.24. According to the applicant, he had been beaten by the police at the apprehension. He raised this complaint before the Court for the first time on 11 November 2005, having stated, inter alia, that on 9 August 2004 he had requested that the prosecutor’s office institute criminal proceedings against three police officers who had threatened him with firearms and fractured two of his ribs when trying to make him admit guilt for a crime. No copy of the complaint has been provided to the Court. On 5 June 2008 the applicant submitted that on 22 January 2004, K. ‒ who was the brother of the applicant’s alleged accomplice in the said crime ‒ and his colleagues had unlawfully broken into his apartment and had severely beaten him while trying to make him confess. In his comments on the Government’s observations, the applicant stated that on 22 January 2004 three police officers, including K., had come to his place of residence, had threatened him and hit him on his head and body with their firearms, fracturing two of his ribs. Thereafter, he had been forced to go to the police station. In view of the beating he had been given, he had been unable to resist and had had to go with the officers.25. The Government submitted that no pressure or physical force had been used on the applicant whilst being apprehended and that the latter had voluntarily agreed to go with the officers to the police station.26. The documents submitted by the Government suggest that during the trial in his criminal case, the applicant repeated his complaint of ill‑treatment. Thus, according to the District Court’s ruling of 29 March 2005, the applicant submitted that on 22 January 2004, K. and three other police officers had come to his apartment and had asked him to go with them to the police station. They were armed and used physical coercion, hitting him on his head several times with their firearms. His sister had also been present in the apartment. The ruling further suggests that, when questioned as a witness, K. had stated that on 22 January 2004 whilst on duty as a security service officer, he had witnessed his brother being apprehended by the police. A police officer had approached K. and asked him to assist in the apprehension of the applicant, with whom K. was acquainted. The police officer, K. and his two subordinates then went to the applicant’s address. With the exception of one security service officer who had remained in the car, they had all gone to the applicant’s apartment. When the applicant opened the door, they had checked his documents, had apprehended him and had escorted him to the police station. K. submitted that the applicant’s sister had also been present in the apartment.27. By the aforementioned ruling of 29 March 2005, the District Court ordered the prosecutor’s office to identify, by 11 April 2005, the persons who had apprehended the applicant and to question them and the applicant’s sister in relation to the applicant’s allegations of ill-treatment. The ruling also instructed the prosecutor’s office to identify other individuals who could give evidence concerning the applicant’s complaint and to question them in this respect. Lastly, the prosecutor was ordered to issue a procedural decision following the results of the inquiry.28. On 18 April 2005 the District Court noted the prosecutor’s failure to comply with the above ruling and sent the case for additional investigation.29. On 21 July 2005 the applicant’s sister was questioned and testified that on 22 January 2004 at about 10 a.m. she had opened the door to K. and two other individuals, who had identified themselves as police officers. Thereafter, she had woken the applicant, and the police officers had asked him to proceed to the police station, having informed him that two other individuals had committed a crime and he needed to present himself with a view to further inquiry. The applicant had got dressed and had gone with the police officers. The applicant’s sister further submitted she had not witnessed any ill-treatment as she had not been present in the applicant’s room. She stated, however, that she had heard raised voices during the conversation between the applicant and the police officers.30. On 23 November 2005 the applicant lodged a complaint about his ill-treatment with the prosecutor’s office. He claimed that K. and his three colleagues had come to his apartment. They had been armed and had tried to force him to assume K.’s brother’s guilt for the crime. When the applicant refused, K. and one of his colleagues, who identified himself as K.’s cousin, started beating him and fractured two of his ribs. As they were demanding that the applicant go to the police station, the applicant’s sister ‒ who had been sleeping in another room – had come in. The applicant further submitted that the police officers had left the apartment after he had stated, in his sister’s presence, that those officers had no authority to take him to the police station. An hour later they had come back, accompanied by the police officer who afterwards questioned the applicant at the police station. Lastly, the applicant alleged that K. had forced his sister to give false evidence.31. On 17 May 2007 the District Court issued a separate order to the investigating authorities to verify, by 29 May 2007, the applicant’s allegations of ill-treatment, having noted in this respect that its order of 18 April 2005 had not been complied with.32. On 4 June 2007 the prosecutor questioned the police officer who had been identified as the one who had apprehended the applicant. The officer submitted that it had been necessary to question the applicant as there was evidence about his possible involvement in a crime. K., who knew the applicant and his home address, happened to be in the vicinity of the police station at the time and volunteered to show them the applicant’s place of residence. They had arrived at the applicant’s apartment around lunch time. The police officer stated that he had not been armed that day and K. would only have had a pneumatic weapon, if he had one at all. After entering the apartment, the officer had identified himself and had informed the applicant that there had been testimony against him. He therefore asked the applicant to go with him to the police station and the latter agreed. The conversation had taken place in the applicant’s room but the police officer did not remember if K. had also entered the room. He further alleged that no recourse to physical force had been needed as the applicant had not resisted and had complied with his request voluntarily. He finally stated that a girl had also been present in the apartment.33. On the same day, on the basis of the above-mentioned statements by the police officer, the prosecutor refused to institute criminal proceedings against the police officer, having found that no physical force had been applied to the applicant and that he had voluntarily agreed to go to the police station. This decision has not been challenged by the applicant and was referred to by the District Court in its judgment of 8 June 2007.34. The documents before the Court indicate that on 26 January 2004 the applicant was admitted to Odesa SIZO. According to the authorities, he underwent a medical examination upon his admission ‒ including an X-ray ‒ was found to be healthy, and did not complain about any injury. His medical file contained an X-ray taken at the city hospital of 25 January 2004, on whose basis, as alleged by the applicant, Odessa SIZO medical staff concluded that the applicant “lacked part of his third left rib” (see paragraph 50 below).35. The case file suggests that in 2006 the applicant’s lawyer had made inquiries to the SIZO authorities and the city hospital about the applicant’s possible injuries following the alleged ill-treatment. The SIZO administration had provided the lawyer with a record of the applicant’s state of health upon his admission to the SIZO and the medical treatment provided to him in detention. The X-ray of 25 January 2004 was mentioned as one of the documents in the applicant’s file upon his admission to the SIZO. According to the city hospital’s reply, no in-patient treatment was provided to the applicant in January 2004.C. Conditions of the applicant’s detention in the SIZO36. From 26 January 2004 to 23 November 2007 the applicant was detained in Odesa SIZO. Without specifying in which cells he had been held or for how long, the applicant initially submitted that his conditions of detention had been unbearable. In his reply to the Government’s observations, the applicant specified that the cells had not afforded enough living space, that the sanitary conditions had been poor, and that he had been detained in those conditions for the most of the day, with no outdoor activity allowed.37. According to the information provided by the Government, the applicant was held in the following cells:- cell no. 209, measuring 7.07 sq. m (intended for 4 detainees);- cell no. 219, measuring 6.83 sq. m (intended for 4 detainees);- cell no. 223, measuring 6.99 sq. m (intended for 4 detainees);- cell no. 255, measuring 7.58 sq. m (intended for 4 detainees);- cell no. 257, measuring 7.39 sq. m (intended for 4 detainees);- cell no. 255, measuring 7.85 sq. m (intended for 4 detainees);- cell no. 285, measuring 7.44 sq. m (intended for 4 detainees);- cell no. 119, measuring 33.42 sq. m (intended for 12 detainees);- cell no. 129, measuring 77.45 sq. m (intended for 42 detainees);- cell no. 131, measuring 35.22 sq. m (intended for 14 detainees);- cell no. 326, measuring 6.73 sq. m (intended for 4 detainees);- cell no. 357, measuring 7.31 sq. m (intended for 4 detainees).38. According to the Government, the conditions in those cells had been adequate and they were equipped with the requisite furnishings and facilities and a partitioned toilet. The windows and the ventilation system allowed fresh air and natural light to circulate and running water and mains drainage had been available.II. RELEVANT DOMESTIC LAWCode of Criminal Procedure of 1960, as worded at the material time39. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33).40. Under Article 23-2, if the court discovers a violation of law and/or of citizens’ rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation. Failure to take the requisite measures constitutes an administrative offence.41. Under Article 236-1, complaints against the decision of an investigator or prosecutor to refuse to initiate criminal proceedings may be filed with the local court by a person whose interests it concerns at the place of the respective authority or official.42. The provisions concerning the application of preventive measures and their types, the time-limits for pre-trial detention, and the grounds for and procedure of detention by an enquiry body (the investigator in the instant case), can be found in the Molodorych v. Ukraine judgment, no. 2161/02, §§ 56-58, 28 October 2010.43. Article 237 obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia, whether there were grounds for changing, lifting or applying a preventive measure.III. RELEVANT INTERNATIONAL MATERIAL44. 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. ...”THE LAWI. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION45. The applicant complained under Article 3 of the Convention that he had been beaten by the police whilst being apprehended on 22 January 2004 and that there had not been an adequate domestic investigation into the matter. The applicant further complained that the physical conditions of his detention in Odesa SIZO had been appalling. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Alleged ill-treatment of the applicant on 22 January 2004 and effectiveness of the subsequent investigation1. Admissibility46. The Government submitted that the applicant’s complaint was manifestly ill-founded as it was limited to vague and general statements not supported by any evidence. They argued that the applicant had been inconsistent in his allegations.47. The Government further stated that upon his admission to Odesa SIZO the applicant had been found to be healthy, that his sister, who had witnessed the applicant being apprehended, did not testify to any use of force by the police, and that no proof of the applicant’s ill-treatment had been found in the course of the investigation of his complaint by the prosecutor (see paragraphs 34, 29 and 33 respectively).48. The applicant argued that his statements were consistent, sufficiently detailed and supported by genuine medical evidence, in particular by the X‑ray of 25 January 2004. He further submitted that the investigation into his complaint was not prompt, thorough and independent.49. The Court notes that the complaint of ill-treatment and the lack of effective investigation into this allegation raises serious issues requiring an examination of the merits. Therefore, contrary to the Government’s submissions, the 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. It must therefore be declared admissible.2. Merits(a)  Alleged ill-treatment50. The applicant referred to the arguments which he had submitted in respect of the admissibility of this complaint and reiterated that his injuries, namely ribs fracture, were confirmed by the X-ray of 25 January 2004. In addition, in reply to the Government’s comments, he stated that the alleged absence of part of a rib on his X-ray picture was a medical nonsense and therefore an incorrect description by Odesa SIZO medical staff of what was shown by the X-ray in order to cover up the police officer’s crime. He submitted in this respect, without giving any details, that his health complaints upon the admission to the SIZO had been disregarded by the authorities.51.

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