FIFTH SECTION      CASE OF TODOROV v. UKRAINE (Application no. 16717/05)       JUDGMENT   STRASBOURG 12 January 2012 FINAL 12/04/2012  This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Todorov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Boštjan M. Zupančič, Mark Villiger, Angelika Nußberger, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 6 December 2011,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 16717/05) 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 Igor Grigoryevich Todorov (“the applicant”), on 28 April 2005.2. The applicant, who had been granted legal aid, was represented by Mr A. V. Lesovoy, a lawyer practising in Simferopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.3. The applicant alleged, in particular, that he had been denied sufficient medical assistance in detention; that his pre-trial detention had lasted an unreasonably long time and that the criminal trial against him had been unfair and lengthy.4. On 24 September 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).5. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Mykhaylo Buromenskiy to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1966 and lives in Simferopol.A. The applicant’s detention and criminal proceedings against him7. On 2 August 1999 the applicant, a police officer at the material time, was arrested on suspicion of membership of a criminal association run by S. P., another police officer, and participation in armed robberies. On the same date his house was allegedly searched without a warrant.8. On 3 August 1999 the applicant signed a waiver of his right to legal representation. On the same date he confessed to having participated in group assaults on families I. and S. in August 1998 upon S. P.’s invitation. He also noted that he believed that the families were visited for collection of unpaid business debts in favour of third parties. According to the applicant, he notified the investigator that he was unable to see the record of his questioning as he had been suffering from eye cataracts.9. On 5 August 1999 the applicant was indicted. He signed the statement of indictment, having noted that he fully acknowledged his guilt and requested to be released from detention, since he needed in-patient treatment on account of his skin disease and eye cataracts, as well as surgery for the latter.10. On the same date the applicant obtained access to an advocate. It is unclear, however, whether the advocate was present during the applicant’s interrogation and indictment on that date.11. Also on the same date the applicant was remanded in custody as a preventive measure. On various occasions the applicant appealed against this measure, in particular, referring to an urgent need to have eye surgery and in-patient treatment for other medical conditions. However his requests were rejected.12. During the pre-trial investigation, the authorities questioned some 120 witnesses concerning over thirty episodes of various crimes, carried out some twenty reconstitutions of the crime scenes and ordered numerous expert assessments.13. On 20 July 2000 the investigation was completed and the applicant, along with eighteen other individuals charged for being involved in a criminal association membership, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea (hereafter “the Court of the ARC”).14. On 4 May 2001, following familiarisation of the defendants with the case-file materials and completion of other procedural formalities, the Court of the ARC held a preliminary hearing in the case and scheduled the trial for 5 June 2001.15. On 29 June 2001 the newspaper Flag Rodiny published an article entitled “Changelings with police epaulettes”, featuring in particular an interview with Sh., the judge presiding over the applicant’s case. The judge was quoted as saying that she was appalled by the audacious crimes committed by the defendants and their challenging conduct at court hearings.16. Having held some eighteen hearings between June and December 2001, the Court of the ARC adjourned the proceedings in connection with one of the defendants’ request to ensure recording of the hearings with technical equipment which was unavailable.17. On 15 May 2002 the Court of the ARC resumed consideration of the case and held some 150 hearings in the period ending 22 May 2004.18. The applicant alleged that on various occasions he and his co-accused had requested the removal of Judge Sh. from the proceedings on various grounds, including lack of impartiality; however, their requests had been rejected. The applicant did not provide copies of his requests for the removal of Judge Sh. or the decisions taken following their consideration.19. The Government alleged that the applicant had never lodged any requests for the removal of the judge during the trial. Such requests had been lodged only by one of his co-defendants, A. K., who had also requested on 29 January 2003 that the above newspaper article be added to the case-file. Those requests had been dismissed as unsubstantiated.20. During the trial, the applicant denied any encounter with the I. family. As regards the S. family, he acknowledged having visited them along with three other defendants to collect the debt owed to a third party at S. P.’s request. He contended that he had been in the kitchen while his companions had spoken with the hosts, that the hostess had given them money voluntarily, and that he had been unaware of any coercion taking place. He further retracted his confessions given during the pre-trial investigation in the advocate’s absence, alleging that at the material time he had been practically blind and unable to read the documents he was signing. He had signed the waiver of his right to be represented by an advocate under pressure from the investigator, who promised that in exchange for his cooperation he would be promptly released from custody to enable him to seek medical treatment.21. On 17 November 2004 the Court of the ARC pronounced its judgment, the text of which was presented on over two hundred pages and concerned over thirty counts of various crimes, including robberies, a murder and assaults committed by nineteen defendants collectively and individually against numerous victims. By this judgment, the applicant was convicted of a criminal association membership and two counts of armed robbery (against the families I. and S.). By way of evidence of his participation in the robberies, the court referred, primarily, to the confessional testimonies of his co-defendants, identifying him as their accomplice, and the testimonies of the members of the assaulted families given during pre-trial investigation and trial, in which they alleged to have recognised the applicant. The applicant’s confessional statements were not referred to by the court in the text of its judgment. The court sentenced the applicant to seven years’ imprisonment, banned him from occupying certain posts for a three-year term and ordered the confiscation of his property.22. In December 2004 and January 2005 the applicant, his lawyer, and his mother acting as his defence, submitted appeals in cassation against the applicant’s conviction. They presented the same version of events as proposed by the applicant during his trial and contended that the court had misinterpreted facts and wrongly applied the law. They challenged the testimonies given by the applicant’s co-defendants, alleging they had been given under duress, and testimonies given by the victims as ambiguous and unreliable. They further contended that all the evidence collected from the applicant in violation of his right to be legally represented should be excluded from the body of evidence. The appellants noted that immediately upon his arrest the applicant had informed the investigative authorities that he was almost blind and was unable to read the documents he was signing. The waiver of his right to be legally represented had not been genuine. On the contrary, the video-recording of the applicant’s initial questioning showed that he requested the assistance of a lawyer, referring to his poor health and vulnerable state. Lastly, the appellants complained that the sentence imposed on the applicant was disproportionately severe, particular regard being had to his state of health and lengthy pre-trial detention in conditions incompatible with it.23. On 12 December 2005 the applicant’s mother drafted a supplement to the above-mentioned appeals, in which she complained, inter alia, that Judge Sh. had not been impartial, since, as it transpires from her interview to the Flag Rodiny newspaper in June 2001, she had had a preconceived notion of the applicant’s guilt from the very beginning of the trial. The copy of this supplement contained in the case file bears no stamps or other evidence that it was admitted by the court for consideration or at least lodged with it.24. On 16 March 2006 the Supreme Court of Ukraine dismissed the applicant’s and his representatives’ appeals in cassation, having found that the trial court had correctly assessed the evidence and applied the law and that there was no appearance of any procedural violations which could have affected the outcome of the case.B. Deterioration of the applicant’s health and the conditions of his detention25. Prior to his arrest, the applicant had been diagnosed as suffering from immature cataracts in both eyes and neurodermatitis.26. On 2 August 1999 the applicant was placed in the Saky Temporary Detention Centre (“the ITT”), where, according to him, he was held in inhuman conditions (overcrowding, poor sanitary arrangements and risk of pressure from inmates because he was a policeman).27. On 9 August 1999 the applicant was transferred to the Simferopol no. 15 Pre-trial Detention Centre (“the SIZO”).28. Upon his arrival, the applicant was examined by the SIZO medical staff and placed under dispensary supervision for immature aggravated cataracts in both eyes, diffused eczema, and chronic gastritis.29. On 28 February 2000 the applicant informed the Prosecutor of the ARC that he had started a hunger strike in protest against being denied the medical assistance he needed.30. On 27 March 2000 the applicant was examined by the medical committee of the ARC Semashko Hospital, which concluded that at the material time he was suffering from scabies, eczema, chronic prostatitis, nephroptosis, gastritis and reactive hepatitis. It further found that the applicant needed in-patient treatment in a specialised facility for his skin diseases and that his cataracts were mature and needed to be surgically removed after treatment of inflammatory processes.31. On 5 July 2001 another medical committee determined that the applicant was still suffering from eczema, gastritis and mature cataracts, for which he needed surgery.32. On 16 July 2001 the applicant was further examined by the head ophthalmologist of the ARC and it was recommended that eye surgery be performed promptly to prevent potential aggravations such as full loss of eyesight and eruption of the eyeballs. The applicant was further advised that in order for the surgery to be effective he needed first to obtain therapeutic inpatient treatment and be supervised by an ophthalmologist for up to two months after the surgery.33. On 17 August 2001 the Court of the ARC adjourned hearings to allow for the applicant’s eye treatment.34. On the same day the SIZO administration requested the Court of the ARC to consider releasing the applicant from custody, because it was impossible to provide the therapeutic treatment he needed in the SIZO. However, this request was not granted.35. On 3 September 2001 the applicant was taken to the eye clinic for surgery. However, having allegedly been advised by medical professionals that the success of the surgery was at risk because of his untreated skin inflammations, he refused to be operated on and returned to the SIZO.36. On 2 September 2005 the SIZO administration petitioned for the applicant’s release from detention, referring to the lack of necessary facilities in the SIZO for the applicant’s proper treatment and risk of permanent loss of eyesight.37. On 9 September 2005 the applicant was assigned the first (most advanced) category of invalidity on account of complete loss of eyesight.38. On 2 August 2006 the applicant was released from custody, as he had already served his sentence.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine of 199639. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).B. Code of Criminal Procedure of Ukraine of 196040. The relevant provisions of the Code of Criminal Procedure of Ukraine, as worded at the material time, read as follows:Article 23-2. Separate ruling of the court“The court, in the event there are grounds for it, shall take a separate ruling (окрема ухвала), in which it shall draw the attention of the State bodies, public organisations or officials to the breach of the law established in the facts of case ...A separate ruling may also be taken where the court reveals breaches of rights of citizens and other breaches of the law that took place during inquiry, pre-trial investigation or consideration of the case by a lower court....The separate ruling must be acted upon as necessary and the court which issued the ruling notified of the results within a month.In the event that an official leaves the separate ruling without consideration, the measures laid down in Articles 254 - 257 of the Code of Administrative Offences of Ukraine shall be applied.Article 46. Waiver of the right to a defence“A suspect, an accused and a defendant in court may at any moment waive [their right to be represented] ...The waiver may not be accepted: ...2)  in cases concerning crimes by persons who, on account of their physical or mental disabilities (muteness, deafness, blindness and other), cannot exercise their right to defence by themselves;...”41. Articles 246, 281 and 396 of the Code provided that if the courts revealed such breaches of the law by the investigative authorities during pre-trial investigation, which could not be remedied at the trial stage, they were to remit the case back to the investigative authorities with instruction to address those breaches.42. The relevant provisions of the Code concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.C. Ruling of the Plenary of the Supreme Court of Ukraine no. 9 of 1 November 1996 “On Application of the Constitution of Ukraine in Carrying out Justice”43. The relevant parts of the above ruling read as follows:“... 19. Article 59 of the Constitution of Ukraine provides that everyone has the right to defend himself from accusation and to obtain legal assistance. Therefore, examining a criminal case, the court must, in the circumstances provided by law, ensure the defendant’s right to defence.... It shall be borne in mind that under Article 62 of the Constitution an accusation may not be based on presumptions or on evidence obtained in an unlawful way. Evidence should be considered as having been obtained unlawfully when, for example, it has been collected and recorded in breach of the human and citizens’ rights guaranteed by the Constitution of Ukraine, or of ... the law on criminal procedure ...”D. International Materials with Respect to Healthcare Arrangements in Detention Facilities44. The relevant international materials with respect to healthcare arrangements in detention facilities may be found in the judgment in the case of Ukhan v. Ukraine (no. 30628/02, § 50, 18 December 2008).THE LAWI. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE HEALTHCARE ARRANGEMENTS IN DETENTION45. The applicant complained under Article 3 of the Convention that medical assistance and healthcare arrangements in custody had been incompatible with his state of health. The relevant provision of the Convention reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility46. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of the above complaint. In particular, he could have brought it at three levels of domestic jurisdiction (they referred to Article 55 of the Constitution, Article 248-1 of the Code of Civil Procedure and Article 2 of the Code of Administrative Justice) or addressed them to the Prosecutor’s Office. They further submitted that, assuming these remedies were considered by the applicant to be ineffective, his complaints concerning the period of his detention in the ITT had been submitted outside the six-month time-limit, since his stay in that facility had ended in August 1999, while the application had been lodged with the Court in 2005. In any way, the complaint was insufficiently specific and unsubstantiated.47. The applicant alleged that the authorities had been well aware of his health problems and that he had raised relevant complaints on many occasions orally and in writing, without success. He further noted that he had submitted his application within six months of the pronouncement of the final judgment in his case by the Supreme Court of Ukraine.48. The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case in a number of other cases, where the complaints concerned problems of a structural nature in the domestic penitentiary system in question (see, for example, Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; and Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010). The Court notes that as appears from the case-file materials, the authorities were well aware of the applicant’s health problems and his need for in-patient treatment and specialised supervision (see paragraphs 29, 30, 34 and 36 above). It therefore rejects the Government’s objection concerning non-exhaustion.49. As regards the six-month argument, referring to its case-law (see Logvinenko, cited above, §§ 59-61), the Court considers that the applicant’s complaint about insufficient healthcare arrangements, including medical assistance, concerns a continuous situation that lasted throughout his stay in detention. The Court therefore has jurisdiction to examine the compatibility of the healthcare arrangements with the applicant’s state of health starting from the date of his arrest (2 August 1999).50. The Court notes that the applicant’s complaint about the inadequacy of healthcare arrangements throughout his stay in detention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits51. The applicant alleged that he had lost his eyesight because of the inadequate healthcare arrangements throughout his detention.52. The Government disagreed. They alleged that the applicant had been regularly and systematically supervised by the medical staff of the detention facilities and had obtained all the necessary treatment and support. He had been afforded an opportunity to have an eye surgery. The Government could not be held responsible for the applicant’s deliberate refusal to be operated on.53. The Court reiterates that the decision to place a person in custody imposes on the Government an obligation to attend to his vital healthcare needs, including, where necessary, by arranging access to treatment aimed at preventing aggravation of the detainees’ pre-existing medical conditions (see, for example, Ukhan v. Ukraine, no. 30628/02, §§ 72-74, 18 December 2008). The Court next observes that refusing to undergo eye surgery, the applicant referred to his doctors’ opinion that its success was at risk on account of his untreated skin diseases. It further notes that the administration of the SIZO expressly petitioned the authorities for the applicant’s release, acknowledging its incapacity to arrange medical supervision necessitated by his state of health (see paragraphs 34 and 36 above). However, these petitions were not granted. The Government have provided no information to rebut the evidence that conditions for the applicant’s treatment had been inadequate.54. Regard being had to the above considerations, the Court finds that the authorities have not done what could reasonably be expected of them to address the deterioration of the applicant’s health and his loss of eyesight. As a result he was subjected to inhuman and degrading treatment.55. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION56. The applicant complained that his pre-trial detention had been unjustifiably long. He relied on Article 5 § 3 of the Convention, which reads as follows:“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”A. Admissibility57. The Government did not submit any comments on the admissibility of this complaint.58. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits59. The applicant contended that his pre-trial detention had lasted an unreasonably long time.60. The Government contested this view. They contended that the applicant had been charged with very serious crimes. They further noted that the case had been exceptionally complicated. It had involved nineteen defendants implicated in over thirty counts of various crimes. During the pre-trial investigation the authorities had questioned eighteen victims, one hundred and twenty witnesses, carried out twenty reconstructions of the crime scenes and ordered more than fifty various expert assessments. These assessments lasted cumulatively 726 days. At the trial stage seventy-seven witnesses and eight experts had been questioned. Regard being had to the seriousness of the charges against the applicant, a risk that he would abscond or tamper with evidence and the complexity of the proceedings, the length of his detention had not been unreasonable.61. The Court notes that the period to be taken into account commenced on 2 August 1999 (the date of the applicant’s arrest) and ended on 17 November 2004 (the date when the applicant was convicted pursuant to the judgment of the first-instance court). It therefore lasted five years and three months.62. Having regard to general principles established in its case-law (see I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, § 102; Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV; and Iłowiecki v. Poland, no. 27504/95, §§ 61-63, 4 October 2001), the Court notes that the applicant’s arrest of 2 August 1999 was based on the strong suspicion that he had committed the offences with which he had been charged. It accepts that the fact that the applicant was suspected of serious offences and could obstruct their investigation may have initially warranted his detention. However, after a certain lapse of time the authorities were obliged to give more detailed and updated reasons for depriving him of liberty. Regard being had to the particularly long period of the applicant’s detention in the present case and his health deterioration, (which had urged the detention facility’s administration to petition for his release), the Court considers that exceptionally compelling reasons were needed to justify keeping him detained.63. In the meantime, it does not transpire either from the Government’s observations or from the other case-file materials that any such exceptional reasons existed. Lacking any specific indications as to how the applicant’s release would have been dangerous or detrimental for the resolution of the case, the Court cannot accept that the general complexity of the case and seriousness of charges against the applicant could be regarded as “sufficient” reasons for holding him in custody for over five years.64.

Outcome for Article 5: violation