FIFTH SECTION      CASE OF BARYSHEVSKYY v. UKRAINE (Application no. 71660/11)         JUDGMENT  STRASBOURG 26 February 2015    This judgment is final. It may be subject to editorial revision.In the case of Baryshevskyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President, Boštjan M. Zupančič, Vincent A. de Gaetano, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 3 February 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 71660/11) 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 Vyacheslav Vasylyovych Baryshevskyy (“the applicant”), on 9 November 2011.2. The applicant, who had been granted legal aid, was represented by Mr M.A. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova.3. The applicant alleged, in particular, that he had not been provided with adequate medical care in detention, the length of his pre-trial detention was unreasonable, he had no effective procedure by which to challenge the lawfulness of his detention, and that the length of proceedings in his case was unreasonable.4. On 4 December 2013 the application was declared partly inadmissible and the above complaints were communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1975 and lives in Konotop.A. Criminal proceedings against the applicant and his detention6. On 8 January 2009 the Konotop Transport Prosecutor’s Office of the Sumy Region instituted proceedings against the applicant, then an officer of the Konotop Transport Police, on suspicion of abuse and exceeding his authority with respect to Mr Z.7. On 9 January 2009 the applicant was arrested and taken to the Konotop Temporary Detention Facility (“the ITT”).8. On 12 January 2009 the Konotop Court examined the applicant’s complaint against his arrest and the investigator’s request for the applicant’s detention. The court rejected the applicant’s complaint and extended his detention for up to ten days.9. On 17 January 2009 the applicant was charged with abuse and exceeding his authority.10. On 19 January 2009 the Konotop Court ordered the applicant’s pre-trial detention on the grounds that he was accused of a serious offence related to corruption which had become publicly known, that being at large he could evade investigation, continue his criminal activities and influence persons related to the investigation, and that his state of health was compatible with detention.11. The same day, the applicant’s lawyer appealed against the above decision.12. On 26 January 2009 the applicant was transferred to the Sumy Pre-Trial Detention Centre (“the SIZO”).13. On 3 February 2009 the Sumy Regional Court of Appeal (“the Court of Appeal”) upheld the decision of 19 January 2009.14. On 5 March 2009 the Zarichnyy District Court of Sumy extended the applicant’s pre-trial detention for up to three months. The court noted that the applicant was accused of a serious offence and if released could evade investigation and trial, obstruct the establishment of the truth in the case, influence witnesses and victims. This decision was upheld by the Sumy Regional Court of Appeal (“the Court of Appeal”) on 24 March 2009.15. On 3 April 2009 the investigator brought additional charges against the applicant for misappropriation of money and documents.16. On 7 April 2009 the Zarichnyy District Court of Sumy extended the applicant’s detention for up to four months on the same grounds as in its decision of 5 March 2009. This decision was upheld by the Court of Appeal on 28 April 2009.17. On 6 May 2009 the Court of Appeal extended the applicant’s detention for up to six months on the ground that the applicant was accused of serious offences punishable by up to 10 years’ imprisonment and that being at large he could obstruct investigation and continue his criminal activities.18. On 30 June 2009 the Konotop Court (“the trial court”) held a preparatory hearing. The applicant’s lawyer requested the applicant’s release, but this request was rejected. The court stated that there were no reasons to change the preventive measure in respect of the applicant.19. On 23 February 2010 the trial court found the applicant guilty of misappropriation of property and abuse of authority sentencing him to five years’ and one month’s imprisonment and confiscation of half of his property other than his residence. It also barred him from occupying positions in law enforcement for three years.20. On 18 May 2010 the Court of Appeal quashed the judgment of 23 February 2010 and remitted the case for a fresh consideration to the trial court. It also decided that the applicant was to remain in detention pending retrial.21. On 17 September 2010 the trial court found the applicant guilty as in its judgment of 23 February 2010, changing the applicant’s sentence of imprisonment to five years and three months.22. On 25 November 2010 the Court of Appeal quashed the judgment of 17 September 2010 and remitted the case for retrial. It also decided that the applicant was to remain in detention pending retrial.23. On 31 January 2011 the applicant lodged a request with the trial court seeking release from custody on an undertaking not to abscond. He argued in particular that there was no reason to believe that he presented a risk of absconding or influencing witnesses, that he had a wife who was ill and in need of hospitalisation. On the same day the trial court rejected the request stating that it was “premature”.24. On 21 February 2011 the trial court convicted the applicant as in its judgment of 23 February 2010.25. On 17 May 2011 the Court of Appeal quashed the judgment of 21 February 2011 and remitted the case for retrial. It also decided that the applicant was to remain in detention pending retrial.26. On the same day the Court of Appeal issued a separate ruling pointing out to the president of the trial court that the trial court had repeatedly failed to rectify the errors found by the Court of Appeal in its previous decisions.27. On 22 September 2011 the applicant requested release claiming that his state of health was not compatible with detention and that he could not receive appropriate medical treatment in SIZO. The trial court rejected this request the same day without giving any reasons.28. On 29 September 2011 the trial court found the applicant guilty of misappropriation of property and documents, and abuse of authority, sentencing him to the same punishment as in the judgment of 23 February 2010.29. On 17 January 2012 the Court of Appeal upheld the judgment of 29 September 2011 with certain amendments.30. On 31 January 2012 the applicant was transferred to the Mensk Prison to serve his sentence.31. On 13 July 2012 the applicant was released on parole in accordance with the ruling of the Mensk Court of 5 July 2012.32. On 29 January 2013 the Higher Specialised Civil and Criminal Court quashed the decision of the Court of Appeal of 17 January 2012 and remitted the case for a fresh examination on appeal.33. On 16 April 2013 the Court of Appeal quashed the judgment of 29 September 2011 and remitted the case for retrial.34. As of 31 March 2014 the proceedings in the applicant’s case were pending before the trial court.B. The applicant’s state of health and medical care in detention35. From 29 December 2008 to 6 January 2009 the applicant was treated at the Konotop District Hospital where he was diagnosed with hypertension of the first (mildest) degree, hyperlipidemia, myocardial fibrosis, ventricular dilation, obesity, fatty hepatosis, chronic cholecistitis, and chronic pancreatitis. As treatment, the applicant was put on a diet excluding fried, salty, spicy foods, strong tea or coffee and certain other foods.36. On 12 January, 15 January and 17 January 2009 the applicant complained to the ITT medical officer of headaches, numbness of limbs, and weakness. He was diagnosed with hypertensive crises and medication was administered.37. On 22 January 2009 the applicant was examined at a hospital. It was determined that the applicant did not require hospitalisation.38. On 25 January 2009 the ITT medical officer noted that the applicant complained on that day about headache and dizziness. Previous diagnosis was confirmed and medication was administered to the applicant.39. On 26 January 2009 the applicant was examined by a medical assistant on his admission to the Sumy Pre-Trial Detention Centre (“the SIZO”). The applicant did not complain about his health.40. On 28 January 2009 the applicant was examined by a doctor of the SIZO medical unit. He was diagnosed with gastritis and medication was prescribed.41. On 4 February 2009 the applicant was examined by a doctor who diagnosed him with cardioneurosis and prescribed medication.42. According to the Government, the applicant was examined by medical specialists at the SIZO on 23 occasions from 9 February 2009 to 16 August 2011, both on his initiative and as part of regular check-ups. He complained about headaches and stomach aches. Previously established diagnoses were confirmed. In addition, on 25 August 2010 the applicant was diagnosed with dermatitis. The applicant was prescribed various medications.43. On 17 August 2011 the head of the SIZO medical unit wrote to the applicant saying that the SIZO provided only urgent dental care, including tooth extraction and pain relief, and did not provide implant care or treatment for cavities.44. On 25 November 2011 the applicant complained about a headache, was examined by a neuropathologist and ophthalmologist. He was diagnosed with astheno-vegetative syndrome and prescribed certain medicines.45. On 13 January 2012 the applicant complained of stomach aches, was diagnosed with chronic gastroduodenitis and prescribed medication.46. On 31 January 2012 the applicant was examined by medical staff on his admission to the Mensk Prison. His state of health was found to be satisfactory.47. On 15 June 2012 the applicant was diagnosed as having an inguinal hernia. He was prescribed bed rest. On 18 June, 20 June, 25 June, 5 July and 7 July 2012 the diagnosis and the recommendation were confirmed.48. On 13 July 2012 the head of the medical unit of the SIZO issued a certificate which stated that the applicant had repeatedly undergone courses of outpatient treatment while at the SIZO. It further stated that at the time the certificate was issued the applicant continued to complain about his state of health, regularly requested consultations in connection with stomach, liver, heart and kidney pains. It went on to state that in this connection the applicant was recommended additional consultation from gastroenterologist, cardiologist, nephrologist and an infrasound examination and that the SIZO had no such specialists on its staff.II. RELEVANT DOMESTIC LAW49. The relevant provisions of the Code of Criminal Procedure of Ukraine with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION50. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman treatment on account of the inadequate medical care with which he had been provided in detention. The invoked Article provides:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”51. The applicant submitted that the medical care he received was inadequate. In particular, he stated that:(i)  there had been no overall assessment and examination of his health and no overall plan for his treatment and any treatment he received was merely situational and symptomatic. In particular, in detention he was not provided the diet analogous to the one he had been receiving during his stay at the Konotop District Hospital prior to his arrest;(ii)  there had been delays in medical care. In particular, even though he had complained of headache and shortness of breath on 12 January 2009 he had not been examined in hospital conditions until several days later. In addition, his examination on 28 January 2009 had been superficial because on that day had only been diagnosed with gastritis while later, on 4 February 2009, he had been also diagnosed with cardioneurosis;(iii)  his health had deteriorated in detention, in particular he had made repeated requests for medical attention and he had developed a new condition, an inguinal hernia, in detention;(iv)  the certificate which had been issued by the chief of the SIZO medical department on 13 July 2012 had indicated that his state of health had deteriorated and the SIZO had not had the specialists needed to examine him.52. The Government argued that the medical care received by the applicant had been adequate. They stressed that the applicant had suffered from neurocirculatory dystonia of hypertensive type, chronic gastritis and fatty hepatosis prior to his detention and that there had been no recorded instances of significant deterioration of his health. The symptoms which had manifested themselves had resulted from the natural course of the applicant’s existing chronic illnesses. Throughout the period of his detention he had been under constant medical supervision. Upon his every complaint he had been examined by physicians and had been prescribed treatment which he had received in full.53. The Court reiterates that it is the duty of the State to provide detained persons with requisite medical assistance (see, e.g., Ukhan v. Ukraine, no. 30628/02, §§ 72-74, 18 December 2008, with further references). In determining whether the authorities have discharged their health-care obligations vis-à-vis a detainee in their charge, the Court’s task is to assess the quality of the medical services provided to the detainee in the light of his state of health and “the practical demands of imprisonment” and to determine whether, in the circumstances of a particular case, the health-care standard applied was compatible with the human dignity of the detainee (see Kaverzin v. Ukraine, no. 23893/03, § 138, 15 May 2012, with further references).54. Turning to the facts of the present case, the Court notes that according to the Government’s submissions all of the applicant’s particular health complaints were addressed and he was provided adequate outpatient treatment in response to his every complaint. The applicant did not contest this. However, according to the applicant, this revealed that the treatment he received was merely situational and symptomatic.55. The Court recalls that the need for a comprehensive therapeutic strategy in treatment of a detainee’s diseases must be determined in light of the nature of the applicant’s condition (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006; Komarova v. Ukraine, no. 13371/06, § 64, 16 May 2013). In this case, there is no evidence that the applicant’s conditions required any specific systemic medical treatment or that he was denied such treatment (see and compare Zinchenko v. Ukraine, no. 63763/11, § 58, 13 March 2014; Andrey Yakovenko v. Ukraine, no. 63727/11, § 79, 13 March 2014). The applicant’s contention that he needed a particular diet as an element of such systemic treatment and was prevented from following it is not supported by any evidence.56. As to the applicant’s submissions about delays in examination and diagnosis between 12 and 22 January 2012 and between 28 January and 4 February 2009, the Court notes that there is no indication that the applicant’s health suffered in any way as a result.57. The majority of conditions the applicant suffered from in custody had been diagnosed prior to his arrest and were of a chronic nature. The evidence before the Court does not support the conclusion that the applicant’s health deteriorated in detention. Likewise, no evidence supports the applicant’s allegation that his hernia diagnosed in detention was caused by a lack of medical treatment.58. As to the applicant’s complaint that on 13 July 2012, following his release, he was advised to consult additional specialists who were not on the SIZO’s staff, there is no indication that the examination recommended was of any urgency or that the applicant sought and was denied it outside of the SIZO.59. While the applicant alleged in general terms that he had been refused unspecified dental treatment since the SIZO had not possessed the necessary facilities, he did not identify the nature of the treatment he had sought. Moreover, there is no suggestion that he requested but was refused such care outside the SIZO.60. The Court observes that the applicant has not advanced any medical evidence in support of his statement that his state of health deteriorated while in detention and, if so, that it happened because of a lack of adequate medical assistance. Neither has he provided evidence that his conditions necessitated any particular treatment which was not given to him.61. In such circumstances, the Court rejects the applicant’s complaint of a lack of adequate medical assistance in detention as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION62. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which reads:“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.”A. Admissibility63. The Court notes 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. Merits1. The parties’ submissions64. The applicant submitted that the domestic courts, while they had referred in general to various risks justifying his continuing detention, had failed to refer to any circumstances or evidence showing that such risks indeed existed. According to him, they had also failed to analyse his arguments and had not considered any alternatives to detention. The only reason for the applicant’s continuing detention, according to him, had been the gravity of the charges against him. In addition, he argued that the domestic authorities had not displayed “special diligence” in the conduct of his case.65. The Government submitted that the applicant’s pre-trial detention had lasted from 9 January 2009 to 29 September 2011, that is two years, eight months and twenty days. During this period the authorities had interviewed a number of witnesses, the victim, and the applicant, and had conducted other investigative actions. The reasons for the applicant’s detention had been stated in the relevant decisions of domestic courts. The Government argued that there had been adequate and sufficient grounds for keeping the applicant in custody and the domestic authorities had demonstrated diligence in the conduct of the case, as required by Article 5 § 3 of the Convention.2. The Court’s assessment66. The Court notes that the applicant remained in continuous detention following his arrest on 9 January 2009 until his conviction on 29 September 2011. With the periods when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention deducted from the total period of detention, the period to be taken into consideration is two years and twenty-one days, comprising the following periods: from 1 January 2009 to 23 February 2010, from 18 May 2010 to 17 September 2010, from 25 November 2010 to 21 February 2011, and from 17 May 2011 to 29 September 2011.67. During this period domestic courts examined whether the applicant should remain in detention on numerous occasions. However, they did not analyse the applicant’s situation in any detail, employing stereotyped language without addressing specific facts of the applicant’s case. Moreover, in its rulings of 18 May 2010, 25 November 2010, and 17 May 2011 the Court of Appeal did not provide any reasons whatsoever, be it even in stereotyped language, for keeping the applicant in detention.68. The Court has held that when domestic courts maintain the detention using each time similar, not to say stereotyped, wording, without showing that they actually pay attention to the passage of time, the requirements of Article 5 § 3 of the Convention are not met (see Mansur v. Turkey, 8 June 1995, § 55, Series A no. 319 B; Svipsta v. Latvia, no. 66820/01, § 109, 9 March 2006; Tiron v. Romania, no. 17689/03, § 39, 7 July 2009).69. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, even for lengthy periods of detention, the domestic courts referred to the same set of grounds, if any, throughout the period of the applicant’s detention (see, e.g., Yeloyev v. Ukraine, no. 17283/02, §§ 59-61, 6 November 2008, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011; Gerashchenko v. Ukraine, no. 20602/05, § 103, 7 November 2013).70. In the present case the seriousness of the charges against the applicant and the risk of his absconding or reoffending had been advanced in the initial order for his detention. This reasoning did not evolve with the passage of time. Nor did the domestic courts consider at any stage any alternative preventive measure instead of detention on remand.71.

Outcome for Article 5: violation