PLACHKOV v. UKRAINE

 
 
 
Communicated on 29 April 2019
 
FIFTH SECTION
Application no. 76250/13
Oleg Volodymyrovych PLACHKOV
against Ukraine
lodged on 25 November 2013
STATEMENT OF FACTS
The applicant, Mr Oleg Volodymyrovych Plachkov, is a Ukrainian national, who was born in 1968 and lives in Kamyanske.
At the material time the applicant held the post of Head of Dniprodzerzhinsk Police.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Criminal proceedings against the applicant and his pre-trial detention
On 2 and 5 November 2012 criminal proceedings were instituted against a certain G., who was the applicant’s subordinate, on account of extorting bribes from local businessmen.
On 2 November 2012, in the applicant’s office, the police seized an envelope with money in it which G. had allegedly passed to the applicant earlier that day.
On the same date, following the police search in the applicant’s apartment, conducted in the context of criminal proceedings against G., a gun (gas pistol modified so as to be able to fire live ammunition), bullets, as well as materials of a criminal case file, which should have been sent to a court in 2005, were seized.
On 12 November 2012 the Dnipropetrovsk Regional Prosecutor’s office instituted criminal proceedings against the applicant on suspicion of abuse of office for his failure to refer the criminal case found at his home to the court.
On the same date the applicant was arrested by the investigator as a suspect in the above proceedings and was charged with abuse of office committed by a state official.
On 14 November 2012 the Zhovtnevy District Court of Dnipropetrovsk (“the District Court”) remanded the applicant in custody on the grounds that he was suspected of a serious crime and, if at liberty, might abscond to avoid investigation and trial, impede the investigation or reoffend. This decision was upheld by the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”).
On 20 December 2012 the criminal proceedings against the applicant and G. were joined together as single proceedings.
On 28 December 2012 the District Court, in allowing the investigator’s application, extended the applicant’s detention until 2 March 2013 on grounds of the necessity to complete the investigation, the seriousness of the charges and the inherent risk that the applicant could abscond, influence witnesses or use his ties in the police force to obstruct the investigation. It relied on some reports of police officers and witnesses in this respect. The court also set bail at 1,400,000 Ukrainian hryvnias (UAH) as an alternative measure.
On 9 January 2013 the Dnipropetrovsk Regional Court of Appeal rejected the applicant’s appeal against the above ruling, having supported the reasoning of the District Court and having noted, inter alia, that the amount of bail was justified by the need to ensure that the applicant would comply with his procedural obligations.
On 18 January 2013 an entry was made in the Unified register of pre-trial investigations marking the beginning of the investigation into the suspected unlawful possession of firearms and ammunition by the applicant (263-1). On 19 February 2013 this investigation was joined to the proceedings concerning other charges against the applicant and G.
On 22 February 2013 an entry was made in the Unified register of pre-trial investigations on account of a breach of traffic rules by the applicant in 2007, which resulted in the death of a victim. On 25 February 2013 the investigation of this charge was joined to the proceedings concerning other charges against the applicant and G.
On 28 February 2013, in allowing the investigator’s application, the investigating judge of the District Court (“the investigating judge”) extended the applicant’s detention until 2 April 2013 with bail set at UAH 1,400,000 as an alternative preventive measure. According to the judge, the case file suggested that the risks mentioned in the earlier detention orders had not diminished and that new risks appeared in view of the additional criminal proceedings instituted against the applicant. He further referred to the need to perform a number of investigative actions to complete the investigation. The applicant appealed, having stated, inter alia, that there had been no grounds to join all the proceedings into one and that none of the risks referred to by the court had been supported by evidence but were a pure assumption.
On 6 March 2013 the Court of Appeal rejected the applicant’s appeal as unsubstantiated.
On 28 March 2013 the investigating judge extended the applicant’s detention until 2 May 2013 upon the investigator’s request. It repeated its previous reasoning, emphasising that the applicant had strong ties in different state bodies and might obstruct the criminal proceedings and influence witnesses and experts. The judge noted that the applicant had failed to provide counter-arguments proving that the above risk had not been valid. As an alternative preventive measure the court set bail at UAH 900,395. The applicant appealed against this decision.
On 5 April 2013, in the absence of the applicant and his lawyer, the Court of Appeal rejected the applicant’s appeal.
On 26 April 2013 the pre-trial investigation was completed and the criminal case file against the applicant and G. was referred to the Zavodsky District Court of Dniprodzerzhinsk (“the Zavodsky District Court”).
On 30 April 2013 the Zavodsky District Court held a preparatory hearing. During the hearing, the prosecutor lodged an application for a change of the territorial jurisdiction of the case in order to avoid doubts as to the impartiality of the trial court. He also requested the court to extend the applicant’s detention. Having heard the parties to the case, the Zavodsky District Court, in two rulings, allowed both requests of the prosecutor and rejected the applicant’s objections in this respect. By the first ruling, the court decided that the criminal case was to be sent to the Court of Appeal to decide on the issue of territorial jurisdiction. In doing so, it noted, inter alia, that the applicant was a high-ranked police official who had a work relationship with courts in Dniprodzerzhinsk which might create a risk of lack of impartiality of these courts. By the second ruling, the Zovodsky District Court ruled that the applicant should remain in detention until 30 June 2013. By way of reasoning the court stated that it had taken into account all factual circumstances, which by the date of the hearing had remained unchanged, and that no other circumstances which would enable the court to change or cancel the preventive measure, had been brought to the court’s attention.
On 29 May 2013 the Court of Appeal transferred the case to the District Court to avoid any possible risks linked to impartiality of the trial court.
On 10 June 2013 the District Court held a preparatory hearing under Article 315 of the Code of Criminal Procedure. It heard the applicant’s and the prosecutor’s submissions as to whether the applicant should be committed for trial. At the close of the preparatory hearing the trial court issued a ruling by which it committed the applicant for trial and dismissed his objection to the court’s jurisdiction over the case. By the same ruling, the District Court ordered the applicant to remain in detention, without giving any reasons for continued detention or setting a time-limit for it. According to the applicant, neither he nor the prosecutor made any motions concerning the changing of the preventive measure previously imposed on the applicant and the trial court did not ask for their opinion as to such a possibility. This ruling was not subject to appeal according to the domestic law.
On 1 July 2013, when the term of his detention under the ruling of the Zavodsky District Court of 30 April 2013 had expired, the applicant lodged an application for release with the Head of the SIZO. He lodged similar applications also on 2 and 8 July 2013. According to the applicant, the Head of the SIZO rejected his requests as he believed that under the District Court’s ruling of 10 June 2013 the term of the applicant’s detention would expire on 8 August 2013, that is two months after the delivery of the respective ruling. The applicant further complained to a prosecutor about his unlawful detention but to no avail.
On 17 July 2013, during the trial in his criminal case, the applicant requested the District Court to replace his detention with any non-custodial preventive measure and to declare that his detention after 30 June 2013 had been unlawful. The court refused to change the preventive measure and extended the applicant’s detention until 15 September 2013. It noted in this respect that all risks mentioned in the previous decisions concerning the preventive measure had not diminished: the applicant had been charged with serious crimes and, in case of release, might influence witnesses and other participants in the proceedings or otherwise obstruct criminal proceedings, given that the trial had not started yet. It noted, without going into details, that “a less strict preventive measure would not be able to eliminate the above-mentioned risks”. The court did not address the issue of legal grounds for holding the applicant in custody between 1 and 17 July 2013. The applicant challenged this ruling to the Court of Appeal but to no avail as such rulings were not subject to appeal according to the law.
On 3 September 2013, during a hearing in his criminal case, the applicant lodged another application for release. The prosecutor, in turn, requested the District Court to extend the applicant’s detention for two more months. The applicant objected to the prosecutor’s request, having stated that the term of his detention under the previous ruling would expire on 15 September 2013 only and that thus there had been no grounds to examine the issue of extension of the detention at that hearing. Having heard the parties, the District Court rejected the applicant’s request and extended the applicant’s detention until 3 November 2013. It repeated its previous reasoning and drew the parties’ attention to the fact that on many occasions during the trial the applicant had lodged applications for release and repeatedly based them on the same grounds that had already been rejected by the courts as insufficient. It also stated that by virtue of Article 331 paragraph 3 of the Code of Criminal Procedure, it was obliged to examine ex officio the issue of the need to keep the applicant in detention. The applicant challenged this ruling to the Court of Appeal but to no avail as such rulings were not subject to appeal according to the law.
On 25 October 2013, at the prosecutor’s request, the District Court extended the applicant’s detention until 24 December 2013 on the same grounds as those given on previous occasions. In addition, it noted that the applicant did not live in the area and as a high ranked police official might use his ties to influence witnesses and other participants in the proceedings or otherwise obstruct criminal proceedings, given that not all witnesses had been questioned by the trial court yet.
On 20 December 2013, during a hearing in the applicant’s case, the prosecutor requested the District Court to extend the applicant’s pre-trial detention. The applicant requested to be released. Having heard the parties, the District Court rejected the applicant’s application and extended his detention until 23 February 2014 repeating the reasoning given in its previous decisions.
On 19 February, 8 April, 27 May, 24 July, 19 September and 12 November 2014 the District Court, either at the prosecutor’s request or acting ex officio, extended the applicant’s detention on the same grounds as before, having rejected as unsubstantiated the applicant’s arguments that no facts had been provided to the court which would prove the existence of the relevant risks referred to by the prosecutor.
On 15 March, 29 April, 7 and 13 October 2014 the applicant’s requests for change of the preventive measure were rejected by the District Court on the ground that the risks referred to in its previous ruling were still relevant and that the application of a less severe measure in such circumstances was not possible.
2.  The applicant’s conviction
On 22 December 2014 the District Court convicted the applicant of unlawful possession of firearms and a breach of traffic rules which had led to a death, and acquitted him as regards the remaining charges.
On 24 June 2015 and 20 July 2016 the Dnipropetrovsk Court of Appeal and the High Civil and Criminal Court of Ukraine respectively upheld the judgment of the first-instance court in respect of the applicant.
3.  Conditions of detention
From 12 November 2012 until at least 15 March 2015, the applicant was detained in the Dnipropetrovsk pre-trial detention facility no. 3 (“SIZO”). On an unspecified date the applicant was transferred to the Menska prison no. 91 to serve his prison sentence.
According to the applicant, from November 2012 to February 2014 he had been detained with two individuals in a cell measuring 7.2 square metres (including the sanitary facilities) for most of the day. After February 2014 and at least until March 2015 (when he lodged his complaint to the Court) he had shared this cell with one cellmate. The electric light had always been on in the cell, even at night; the window had had grates on it scarcely letting in daylight or fresh air; there had not been any artificial ventilation, which had made the applicant suffer during the summer; the toilet had been separated from the living quarters with a simple stand with no doors and smelled of excrement. The food had been meagre and very poor quality. The detainees had been able to wash themselves, cut their nails and shave only once a week in a special bathing facility. All of the detainees had shared the same pair of scissors. The applicant had been allowed to walk outside his cell for only one hour daily.
4.  Alleged ill-treatment of the applicant in the SIZO and the lack of medical assistance for the injuries sustained
On 2 October 2014, when returned to the SIZO from a court hearing, the applicant - a police officer - was placed in the same cell as twenty previously convicted criminals, contrary to the national legal requirements. Thereafter he was beaten by three of his cellmates. According to the applicant, apart from numerous bruises, he sustained a rib fracture, a concussion and an eye injury as a result of the ill-treatment. After the beating, he was placed in a separate cell and left without any medical assistance for several hours. During that time he was bleeding and had lost consciousness several times.
In the evening of the same day the applicant was visited by the SIZO medical practitioner. The latter recorded the injuries and advised the applicant to use cold water from the water tap to help his eye. He rejected the applicant’s assumption that he had a rib fracture as there had been no bruises on the applicant’s chest. The applicant’s repeated requests to call an ambulance for him had been allegedly ignored by the SIZO staff.
Later on the same day, according to the applicant, he was visited by a police officer and lodged a criminal complaint about his ill-treatment. According to the applicant, no investigation has ever been carried out into this complaint. No copy of the complaint is available to the Court.
On 7 October 2014, during a court hearing in his criminal case, the applicant complained to the court about his ill-treatment and that the SIZO authorities refused to provide him with any medical assistance for his injuries. He therefore requested the court change the preventive measure, having also referred to the poor material conditions of his detention. The court rejected the applicant’s request, having noted, inter alia, that the applicant had failed to provide medical documents about his state of health. At the same time, in its ruling delivered on the referred date the court noted that the applicant had visible facial injuries and ordered the relevant authorities to apply security measures aimed at the protection of the applicant in detention. According to the applicant, the court’s order remained unenforced. The applicant also provided the Court with a photo, allegedly taken by his lawyer during the above-mentioned court hearing, which shows the applicant with large bruises on his face and damage to his right eye.
On 13 October 2014 the applicant complained again to the trial court that no medical assistance had been provided to him for his injuries and he requested that he be released. The District Court again rejected the applicant’s request, having stated that the applicant had provided no medical documents related to his state of health. The court rejected the applicant’s request for a medical examination.
B.  Relevant domestic law
Code of Criminal Procedure 2012
Articles 193 and 199 are contained in Chapter II of the Code which governs the application and extension of preventive measures, including pre-trial detention.
Under Article 193 any request to apply preventive measures must be examined in the presence of the prosecutor, the defendant and his lawyer. The request can be examined in the defendant’s absence only where the prosecutor has proven that the defendant is on the international list of wanted persons.
Under Article 199 the prosecutor or the investigator, with the prosecutor’s consent, may submit a request to extend pre-trial detention no later than five days prior to the expiration of the detention order. The question of an extension of the detention shall be considered according to the same rules as the question of placement in detention.
According to Article 315 of the Code, during the preparatory court hearing the court shall be entitled, at the request of the parties, to impose, alter or revoke preventive measures imposed on the defendant. When considering such requests, the court shall follow the rules set forth in Chapter II of the Code. In the absence of such a request from the parties, the preventive measure imposed at the pre-trial investigation stage “shall be deemed to be extended”.
COMPLAINTS
Relying on Article 3 of the Convention the applicant complains of his ill-treatment in detention on 2 October 2014 and the lack of an effective investigation in this respect, as well as of his conditions of detention in the SIZO. Under Articles 3 and 13 of the Convention, the applicant alleges that he was not provided with medical assistance on account of the injuries he sustained on 2 October 2014 and that he had no effective remedies at his disposal in that respect.
Lastly, the applicant complains about a number of violations of Article 5 of the Convention:
- under Article 5 § 1 the applicant complains that the decision to keep him in detention on 10 June 2013 was unlawful because the domestic court took this decision of its own motion, having provided no grounds for the detention and having set no time-limits; he also argues that his detention from 1 to 17 July 2013 was arbitrary as the term of his detention under the previous ruling of the court had expired on 30 June 2013;
- under Article 5 § 3 the applicant complains that there were no reasons for keeping him in pre-trial detention and that the courts’ decisions extending his detention were not based on any evidence of risks relied upon by the courts as grounds for his continued detention; he also complains that the amount of bail set as an alternative to his detention was too high and did not take his income into account;
- under Article 5 § 4 the applicant complains that his applications for release were not duly examined by the court on 17 July, 15 August and 20 December 2013 as well as on 12 November 2014.
QUESTIONS TO THE PARTIES
1.  Was the applicant subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention, on account of the incident in the SIZO on 2 October 2014?
2.  Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), did the authorities undertake any investigation into the aforementioned incident? If so, was the investigation undertaken by the domestic authorities in breach of Article 3 of the Convention? Your Government are requested to submit a chronologically ordered information note on the investigation, as well as copies of all related documents.
3.  Was the applicant provided with timely and adequate medical assistance for the injuries sustained in the SIZO on 2 October 2014, as required by Article 3 of the Convention?
 
4.  Does the applicant have at his disposal an effective domestic remedy for the above complaint about the lack of medical assistance in detention, as required by Article 13 of the Convention?
 
5.  Did the conditions of the applicant’s detention in the Dnipropetrovsk pre‑trial detention centre, in particular but not limited to the personal space available in the cell and the time allowed outside the cell, amount to inhuman or degrading treatment, within the meaning of Article 3 of the Convention?
 
6.  Was the applicant’s detention from 10 June to 17 July 2013 compatible with the requirements of Article 5 § 1 of the Convention?
 
7.  Has there been a violation of Article 5 § 3 of the Convention? In particular, were the reasons relied upon by the domestic courts in their decision to extend the applicant’s pre-trial detention relevant and sufficient for the purposes of Article 5 § 3 of the Convention? Was the amount of bail set by the court compatible with the requirements of Article 5 § 3 of the Convention?
 
8.  Was the procedure for review of the lawfulness of the applicant’s detention on 17 July, 15 August and 20 December 2013 as well as on 12 November 2014 in conformity with Article 5 § 4 of the Convention?

Full & Egal Universal Law Academy