FIFTH SECTION      CASE OF TARAN v. UKRAINE (Application no. 31898/06)      JUDGMENT    STRASBOURG 17 October 2013   FINAL 17/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Taran 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 24 September 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 31898/06) 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 Ivan Vasilyevich Taran (“the applicant”), on 27 July 2006.2. The applicant was represented by Mr V. Suk, a lawyer practising in Sevastopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.3. The applicant’s complaints concerned, in particular, the conditions of his detention and transportation between detention facilities (Article 3 of the Convention); the lawfulness of his pre-trial detention based on court decisions adopted between August and October 2005, and the lawfulness of his pre-trial detention after 29 November till 29 December 2005 (Article 5 § 1 of the Convention); the length of his pre-trial detention (Article 5 § 3 of the Convention); the lack of appropriate judicial review of his detention (Article 5 § 4 of the Convention); the absence of an enforceable right to compensation (Article 5 § 5 of the Convention); and the length of the criminal proceedings (Article 6 § 1 of the Convention).4. On 15 May 2012 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 1980 and lives in Sevastopol.A. Criminal proceedings against the applicant and related issues6. On the evening of 29 June 2005 the applicant was arrested on suspicion of murder.7. On 1 July 2005 the Nakhimivskyy District Court of Sevastopol (“the District Court”) ordered the applicant’s pre-trial detention for two months. The District Court noted that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the fact that the applicant had been charged with a serious crime and had no registered address in Sevastopol.8. On 11 July 2005 the Sevastopol Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant’s lawyer and upheld the lower court’s decision noting that the applicant had been charged with a serious crime.9. On 25 August 2005 the investigator in the case applied to the court seeking an extension of the applicant’s pre-trial detention to three months.10. On 26 August 2005 the District Court extended the applicant’s pre-trial detention to three months noting that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the gravity of the charges levelled against the applicant and a considerable number of procedural measures that had to be taken in the case. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent.11. On 7 September 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the decision of 26 August 2005, finding that the District Court had properly extended the applicant’s pre-trial detention. It dismissed the applicant’s contention that the investigator’s request for an extension of the preventive measure had been submitted outside the statutory time-limit as that issue did not affect the lawfulness of the impugned decision. The applicant’s allegation that he had to be released for health reasons had not been supported by evidence. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent.12. On 27 September 2005 the investigator applied to the District Court seeking an extension of the applicant’s pre-trial detention to four months.13. On 29 September 2005 the District Court extended the applicant’s pre-trial detention to four months, noting that, if he were freed, the applicant might abscond and impair the establishment of truth and obstruct the course of justice. The court again referred to the gravity of the charges levelled against the applicant and the considerable number of procedural measures that had to be taken in the case. The hearing was attended by the prosecutor; the applicant and his lawyer were absent.14. On 13 October 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the District Court’s decision of 29 September 2005. The Court of Appeal noted, in particular, that a considerable number of procedural measures had still to be taken in the case; the applicant was charged with a serious crime and, if released, might abscond, obstruct the investigation and continue his criminal activities. As to the applicant’s absence from the hearing before the District Court, the Court of Appeal considered that the applicant’s appearance had not been obligatory. The hearing before the Court of Appeal was held in the presence of the prosecutor and the applicant’s lawyer. The applicant was absent.15. On 26 October 2005 the investigator applied to the Court of Appeal seeking an extension of the applicant’s pre-trial detention to five months.16. On 28 October 2005 the Court of Appeal extended the applicant’s pre-trial detention to five months, namely to 29 November 2005. Its decision was based on the gravity of the charges and the necessity to finalise the investigation and familiarise the defence with the case file. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant was absent. The decision was not subject to appeal.17. On 29 November 2005 the criminal case file was remitted to the District Court for the applicant to be tried.18. In December 2005 the applicant lodged a complaint under the Code of Administrative Justice alleging that the prosecutor had failed to release him from custody after 29 November 2005. The applicant contended that his detention after 29 November 2005 had not been based on any court decision and was therefore unlawful.19. On 23 December 2005 the Leninskiy District Court of Sevastopol considered the applicant’s complaint under the Code of Administrative Justice in the absence of the parties. It found that on 29 November 2005 the case had been remitted to the District Court and that the prosecutor had not been empowered to decide on the applicant’s release. The applicant appealed against that judgment.20. On 29 December 2005 the District Court, conducting a preliminary hearing in the applicant’s criminal case, decided to order an additional investigation. It further ordered that the preventive measure in respect of the applicant be left unchanged.21. Following the completion of the additional investigation, on 28 February 2006 the case was again remitted to the District Court for the applicant to be tried.22. On 30 March 2006 the Court of Appeal dismissed the appeal lodged by the applicant against the judgment of 23 December 2005 in the administrative case, finding that the judgment was lawful and substantiated. The hearing was held in the presence of the applicant’s lawyer. The applicant appealed against that decision on points of law.23. On 31 March 2006 the applicant was committed for trial before the District Court. The court held that the preventive measure in respect of the applicant should remain the same as there had been no grounds for changing it.24. On 17 and 18 October 2006 the applicant and his defence counsel requested the District Court that the applicant be released from custody, claiming that his detention had not been based on a reasoned court decision and there were no grounds for believing that he would flee from justice or obstruct the criminal proceedings.25. On 18 October 2006 the District Court dismissed the requests as unfounded, noting that the case concerned a serious crime and the applicant, if released, might abscond and obstruct the establishment of truth.26. On 1 March and 16 April 2007 and 1 August 2008 the District Court considered similar release requests lodged by the applicant and his defence counsel during the hearings. The court rejected the requests, noting that the preventive measure had been applied lawfully and there were no grounds for changing it.27. On 16 May 2007 the Higher Administrative Court, sitting in private, upheld the decisions of 23 December 2005 and 30 March 2006 in the administrative case and dismissed the applicant’s appeal on points of law as unfounded.28. On 19 November 2010 the District Court found the applicant guilty of murder and sentenced him to seven years’ imprisonment. The applicant appealed and made another request for release from custody.29. On 12 April 2011 the Court of Appeal quashed that judgment and ordered an additional investigation. It also allowed the applicant’s release, noting that after 29 November 2005 he had been detained without a court order; the subsequent extension of his detention had not been properly reasoned and no time-limit had been specified by the court. In granting the applicant’s request the Court of Appeal also had regard to the overall length of the applicant’s detention. It released the applicant subject to a written obligation not to abscond.30. Following the additional investigation, on 18 July 2011 the applicant was committed to trial before the District Court. As of 4 December 2012 the proceedings were pending before the court.B. The applicant’s civil claim for damages31. On 18 July 2011 the applicant lodged a civil claim with the Leninskyy District Court of Sevastopol seeking compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful deprivation of liberty. The applicant contended, among other things, that his claim was supported by the findings of the Court of Appeal in its decision of 12 April 2011.32. On 5 July 2012 the Leninskyy District Court of Sevastopol found that the applicant’s claim had been groundless. Moreover, contrary to the requirements of the Compensation Act, the applicant failed to substantiate any damage he had allegedly sustained. The applicant appealed.33. On 8 November 2012 the Court of Appeal quashed the decision of 5 July 2012 noting that, instead of the Compensation Act, the first-instance court should have applied the Convention. The Court of Appeal further found that the applicant’s arrest and detention had been lawful and justified by the circumstances of the criminal case. Besides, according to section 2 of the Compensation Act, the fact of unlawful detention on remand could not be confirmed by a decision on the remittal of the case for additional investigation. Accordingly, given that the deprivation of liberty was lawful and substantiated, the applicant had no right to compensation for damage and the claim had to be rejected.34. The applicant appealed on points of law, but on 4 February 2013, his appeal was dismissed as unfounded.C. Conditions of detention and transportation35. Following the court decision of 1 July 2005 the applicant was placed in the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”). In order to participate in the investigative measures and court hearings, he was escorted to the Sevastopol Temporary Detention Centre (“the Sevastopol ITT”) for several days at a time. According to the official reply from the Prison Department of the Autonomous Republic of Crimea, between 2005 and 2009 the applicant was escorted to the Sevastopol ITT on twenty-seven occasions. According to the applicant, during the whole period of his pre-trial detention he was transported to the Sevastopol ITT on forty-five occasions.36. According to the applicant, his trip to Sevastopol took about twelve hours and the trip back to Simferopol took from twenty to twenty-four hours. Although the transportation itself took about two hours, for the rest of the time he had to remain in a special metal cage inside the vehicle measuring 0.5 sq. m. During the trip the applicant was not given food or water and he could not sleep. The cages were dirty, cold in winter and hot in summer, and not properly ventilated.37. In the Sevastopol ITT, the applicant was allegedly held in overcrowded cells: during the first years of his detention he was held in cells containing six bunks, while the overall number of detainees ranged from twenty-five to thirty. In the last two years of his detention the number of detainees decreased to fifteen per cell, which still contained only six bunks.38. On 18 November 2005 the applicant applied to the Ukrainian Parliamentary Commissioner for Human Rights complaining about the conditions of detention and transportation.II. RELEVANT DOMESTIC LAW39. The relevant provisions of the Constitution and the Code of Criminal Procedure, which was applicable at the relevant time, can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 57-59, 28 October 2010).40. Under Article 162 of the Code of Administrative Justice (2005), the administrative court, should it find an administrative claim substantiated, may, inter alia, declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. The administrative court may also take other decisions guaranteeing the protection of human and citizens’ rights, and the rights and interests of other subjects of public law relationships, from violations committed by public authorities.41. Article 1176 of the Civil Code (2003) deals with the compensation for damage sustained as a result of unlawful decisions, actions or inactivity by the body of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. It provides, inter alia, that the procedure for compensation of damage inflicted by such bodies “shall be established by the law”.42. The relevant provisions of the Compensation Act (the law “on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts”) of 1 December 1994 read as follows:Section 1“Under the provisions of this Act a citizen is entitled to compensation for damage caused by:1)  unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizen’s rights; ...”Section 2“The right to compensation for damage in the amount and in accordance with the procedure established by this Act shall arise in the event of:1)  acquittal by a court;2)  the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti, or for lack of evidence of the accused’s participation in the commission of the crime;3)  refusal to initiate criminal proceedings or terminate criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this section;4)  termination of proceedings for an administrative offence....”43. According to the amendments to the Compensation Act of 1 December 2005, section 2, providing the list of situations in which the right to compensation arose, was supplemented with the following paragraph:“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (except for rulings on the remittal of cases for additional investigation)”.III. RELEVANT INTERNATIONAL AND DOMESTIC MATERIALS44. The relevant international and domestic materials concerning conditions of detention and transportation can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007), and Koktysh v. Ukraine (no. 43707/07, §§ 39-42, 10 December 2009).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION45. The applicant complained that the conditions of his detention in the Sevastopol ITT and the conditions of his transportation between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article 3 of the Convention.46. Article 3 of the Convention provides as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility1. The parties’ submissions47. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this part of application. In particular, he should have applied to the administrative courts or raised these issues before the prosecutor. As an example of the practical effectiveness of the judicial remedy, the Government referred to the domestic court’s decision of 4 February 2009 in which the claimants were awarded compensation in allegedly similar circumstances. They did not provide a copy of that decision.48. The Government further maintained that the complaints were not properly developed and substantiated by the applicant and had to be rejected as manifestly ill-founded. They submitted that the documentation concerning the applicant’s detention in the Sevastopol ITT and his transportation between the Sevastopol ITT and the Simferopol SIZO had been destroyed, since the time-limit for keeping it had expired. They provided a general description of the Sevastopol ITT and stated that its detainees were held in adequate conditions. The Government also provided a general description of the vehicles and train carriages used to transport detainees, and contended that the transportation of the applicant had not disclosed any issue under the Convention.49. The applicant, relying on the Court’s case-law, alleged that the remedies referred to by the Government were ineffective. He insisted that his complaints under Article 3 of the Convention were well-founded and could not be rejected as inadmissible.2. The Court’s assessment50. The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko, cited above, §§ 75-76; Koktysh, cited above, § 86; Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010; Iglin v. Ukraine, no. 39908/05, § 43, 12 January 2012; and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30 and 31, 16 February 2012). As to the Government’s additional contention that the domestic court’s decision of 4 February 2009 proved the efficiency of the judicial remedy, the Court notes that a copy of that decision was not provided. Moreover, it appears that the Government refer to a decision which was examined by the Court in the same context and found to be of no relevance for the issue of exhaustion of domestic remedies (see Petukhov v. Ukraine, no. 43374/02, § 74-78, 21 October 2010, and Ustyantsev v. Ukraine, no. 3299/05, §§ 56-58, 12 January 2012). In summary, there are no grounds for assuming that in the present case the use of the remedies mentioned by the Government could effectively have addressed the applicant’s issues. The Court therefore sees no reason to depart from its previous approach and dismisses the Government’s objection.51. The Court further considers that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions52. The applicant contended that the conditions of his detention and transportation were inappropriate and contrary to Article 3 of the Convention.53. The Government did not comment on the merits of these complaints considering them inadmissible.2. The Court’s assessment54. The Court notes that the applicant’s complaints concerning the conditions of detention and transportation are detailed and consistent. These complaints, including the specific allegations of degrading manner of the applicant’s transportation in a metal cage, raise serious concerns. The Court considers that the applicant’s submissions, which have not been refuted by the Government, are sufficiently supported by the international and domestic reports examined by the Court in the cases of Yakovenko and Koktysh (cited above) and by the Court’s findings in those cases concerning the conditions of detention in the Sevastopol ITT and the manner of transportation between the Sevastopol ITT and the Simferopol SIZO. At the same time, there is no material leading the Court to conclude that in the present case the applicant’s conditions of detention and transportation were compatible with the requirements of Article 3 of the Convention.55. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION56. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention after 29 November 2005 till 29 December 2005 had not been lawful as it had not been based on a court decision. He also complained that between August and October 2005 his pre-trial detention had not been lawfully extended by the courts. The applicant further alleged that the other court decisions taken in respect of the preventive measure had been unreasoned and the overall length of his detention had been excessive.57. The relevant provisions of Article 5 read as follows:Article 5“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 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. Admissibility1. The parties’ submissions58. The Government submitted that the applicant had not complied with the rule of exhaustion of domestic remedies. They noted that the Court of Appeal, in its decision of 12 April 2011, had acknowledged in substance that the applicant’s rights had been violated under Article 5 §§ 1 and 3 of the Convention. Relying on Article 1176 of the Civil Code and the Compensation Act, the Government maintained that after the Court of Appeal’s decision it had been open for the applicant to seek damages, but he had failed to exhaust that remedy.59. The Government further argued that the applicant’s complaint concerning the unlawful prolongation of his pre-trial detention between August and October 2005 fell outside the six-month period, which had started to run from the date when the applicant had become aware of the relevant decisions of the Court of Appeal.60. The applicant disagreed with the Government’s objections.2. The Court’s assessment61. As regards the Government’s contention that the applicant failed to exhaust domestic remedies as he did not lodge a civil claim, the Court notes that in fact the applicant lodged a claim for damages which was considered and rejected by the domestic courts (see paragraphs 31 - 34 above). Accordingly, the Government’s objection should be dismissed.62. As to the alleged non-compliance with the six-month rule, the Court observes that the applicant’s uninterrupted detention during the specific period to which he referred, as well as during the subsequent periods until his conviction on 19 November 2010, was of the same legal nature and constituted, for the purposes of the Convention, a continuing situation. As the application was introduced on 27 June 2006, the complaint cannot be dismissed as lodged out of time (see Nikolay Kucherenko v. Ukraine, no. 16447/04, § 29, 19 February 2009 and Gavazhuk v. Ukraine, no. 17650/02, §§ 54-55, 18 February 2010). The Court therefore dismisses the Government’s objection in this respect.63. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions64. The applicant insisted that his rights under Article 5 had been infringed.65. The Government contended that the applicant’s complaints did not give rise to a violation of Article 5 of the Convention. In particular, the decisions between August and October 2005 constituted appropriate legal basis for the applicant’s pre-trial detention at the relevant time.2. The Court’s assessments66. The Court considers that the applicant’s submissions concern the following issues, which have to be examined in turn:(a) whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with the requirements of lawfulness under Article 5 § 1 (c) of the Convention; and(b) whether the court decisions in respect of the preventive measure were compatible with the requirements of Article 5 §§ 1 and 3 of the Convention.(a)  Whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with Article 5 § 1 (c) of the Convention67. The Court notes that during the period under examination the applicant was held in detention on account of an indictment having been submitted to the court, even though there was no court decision validating his detention. The Court has already found that such practice is not compatible with Article 5 § 1 (c) of the Convention (see, for example, Nikolay Kucherenko, cited above, §§ 35-38, Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011 and Tsygoniy v. Ukraine, no. 19213/04, § 60, 24 November 2011).

Outcome for Article 3: violation