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Case of Aleksandrovskaya v. Ukraine
Case of Aleksandrovskaya v. Ukraine
JUDGMENT
STRASBOURG
25 March 2021
INTRODUCTION
1. The case concerns the applicant’s complaints: under Article 3 of the
Convention that she was placed in metal cages during court hearings; under
Article 5 § 1 (c) that her arrest was unlawful; and under Article 5 § 3 that
her continued detention was unjustified. She also raised other complaints.
THE FACTS
2. The applicant was born in 1948 and lives in Kharkiv. She was
represented by Mr M. Tarakhkalo, Ms O. Chilutyan, Ms O. Protsenko
(lawyers practising in Kyiv) and Mr O. Shadrin (a lawyer practising in
Kharkiv).
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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into account: the suspicion against the applicant was groundless; she had
strong social ties in her place of residence, an excellent reputation and no
criminal records; she suffered from chronic diseases; the alleged offences
had caused no pecuniary damage; and four persons were willing to act as
sureties for her as provided for by Article 176 § 1 of the CCP (see
paragraph 55 below).
10. On 29 and 30 June 2016 the court examined the investigator’s
application and allowed it on the latter date, ordering the applicant’s
detention until 26 August 2016. It stated that the evidence submitted
demonstrated that there was a reasonable suspicion against her and that the
risks under Article 177 § 1 (1), (3) and (4) of the CCP had been established.
The severity of the sentence which the applicant faced, in combination with
the information about her, the fact that she did not admit her guilt, and the
possibility that she might influence witnesses and obstruct the criminal
proceedings by informing other possible perpetrators about the
investigation, rebutted her arguments that there had been no such risks. The
court also stated that it had examined the possibility of applying
non-custodial preventive measures, but pursuant to Article 176 § 5 of the
CCP, to which it referred twice, such measures could not be applied in
respect of one of the crimes which the applicant was charged with
(Article 110 § 2 of the Criminal Code). Taking into account the existing
risks and the available evidence indicating that the applicant had committed
serious crimes, the application of less restrictive measures was not therefore
possible. The court did not examine the applicant’s lawyers’ complaint of
the unlawfulness of her arrest, holding that it was to be examined by the
prosecutor.
11. On 5 July 2016 the applicant’s lawyers appealed against the ruling of
30 June 2016, stating that the court had not substantiated the risks under
Article 177 of the CCP, and had only formally referred to them. No such
risks were present: the applicant was of an advanced age and had health
issues; she had a permanent place of residence, an occupation, an excellent
reputation and positive character references; she had no criminal records;
and she had been a member of parliament. The court had ignored the fact
that several persons were willing to act as her sureties. Lastly, the lawyers
submitted that Article 176 § 5 of the CCP precluded the court from taking
into account the requirements of Articles 177 and 178.
12. On 22 July 2016 the Kharkiv Regional Court of Appeal (“the Court
of Appeal”) upheld the ruling of 30 June 2016. It further added that the
applicant’s son lived in Russia and maintained relations with her, that she
had managerial skills, a certain reputation and was popular in the Kharkiv
Region, and that she had been a member of parliament and the regional
secretary of the Communist Party; those circumstances were sufficient to
make one believe that, if at large, she might abscond, influence witnesses or
otherwise obstruct the proceedings. Lastly, the court twice referred to
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20. The applicant stated that during the court hearings held between
29 June and 22 September 2016 she had been held in metal cages and
guarded by convoy officers. As the case had been highlighted by the media,
she had been exposed to the public. During the hearing of 29 June 2016
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(see paragraph 8 above) her lawyers had requested her release from the cage
in which she had been placed. The court had released her only during the
hearing of 30 June 2016, in the afternoon. During the hearings of 29 and
30 June 2016 she had remained in a courtroom with poor ventilation and air
conditioning, and had been exposed to high temperatures.
21. In a letter of 3 March 2017 sent to the Government the Kyivskyy
Court stated that: during the hearing of 29 June 2019 it had examined
another application by the applicant’s lawyer, and the examination of that
application had not involved the examination of any other applications (such
as the one for the applicant’s release from the cage); neither the applicant
nor her lawyers had asked the court to release her from the cage during the
hearing of 26 August 2016 (see paragraph 14 above); the applicant’s
lawyers had asked the court to release her during the hearing of 9 September
2016 (see paragraph 14 above), but pursuant to the 2015 Instruction on
Escorting Accused or Convicted Persons (“the 2015 Instruction”), a person
could be released from a metal cage only where his or her preventive
measure was changed to a non-custodial one (placement in a metal cage
having been a transitional measure provided for until metal cages were
replaced by glass cabins).
22. The applicant further stated that during the hearing of 12 July 2016
(see paragraph 31 below) she had been held in a metal cage, and that
handcuffs had been used on her when she had been escorted to the
courtroom. In a letter of 6 March 2017 sent to the Government the
Zhovtnevyy District Court of Kharkiv (“the Zhovtnevyy Court”) stated that
the applicant had been placed in a metal cage because at that time there had
been no glass cabins. Also, she had made no applications in that regard. In a
letter of 6 March 2017 the police informed the Government that handcuffs
had not been used on the applicant, and moreover she had made no
complaints.
23. During a hearing of 15 July 2016 the applicant’s lawyers asked the
Court of Appeal to release her from the metal cage in which she had been
placed. According to the audio-recordings of the hearing, the judge asked
the head of the convoy service whether it was possible to do this. With
reference to the 2015 Instruction, the head of the service responded in the
negative, and the judge rejected the application. In a letter of 6 March 2017
the Court of Appeal informed the Government that during the hearings of
22 July and 5 and 22 September 2016 (see paragraphs 12 and 16 above) the
applicant had not made any relevant complaints.
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24. On the night of 29 June 2016 the applicant stayed in the city
hospital, suffering from a hypertensive crisis. She was examined by various
doctors, had X-ray, ultrasound and electrocardiographic examinations, and
was diagnosed with numerous diseases (ischemic heart disease, diffuse
cardiosclerosis, arrhythmia, stage II hypertension, stage II-A cardiac
insufficiency, a duodenal ulcer in remission, autoimmune thyroiditis,
hypothyreosis and varicose veins) from which she had already been
suffering for several years (together with some other diseases, such as stable
angina, not diagnosed at the hospital on that day).
25. During the hearing of 30 June 2016 (see paragraph 8 above) the
applicant was examined by a private cardiologist, Dr N., who diagnosed her
with most of the above diseases. She noted that there was a very high risk of
complications from those diseases, and prescribed medical examinations
(brain imaging, ultrasound and X-ray examinations, several blood and
hormone tests, a coronary angiogram (the angiogram to be conducted “on a
non-urgent basis”) and twenty-four-hour electrocardiogram and blood
pressure monitoring) and medication; she also recommended a diet (“the
conclusions of 30 June 2016”).
26. On the same day the applicant was transferred to a SIZO, where she
was examined by a doctor who noted that her condition was satisfactory and
that she was not expressing any complaints.
27. From 30 June to 2 July 2016 the applicant received inpatient
treatment in the SIZO medical unit. She underwent blood and urine tests,
which detected no pathology, and received medication. On 2 July 2016 she
was discharged from the medical unit upon making a request in which she
stated that she did not require further inpatient treatment.
28. According to a document issued by Dr S., the head of the SIZO
medical unit, out of the recommendations made in Dr N.’s conclusions of
30 June 2016, only blood and urine tests and an X-ray examination could be
carried out in the SIZO. There was also an electrocardiograph. The X-ray
examination had already been carried out in the hospital and showed no
pathology. The recommended diet mainly excluded fatty and spicy foods,
which the meals in the SIZO did not contain. However, the parcels which
the applicant had received from her relatives had contained products not
recommended by that diet (meat, smoked bacon and sausage) and cigarettes.
As indicated by letters from the State Prisons Service dated 14 July and
22 September 2016 and other documents in the case file, during her
detention in the SIZO the applicant was provided with some of the
prescribed medication, and she received other medication from her sister-in-
law, Ms B.
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29. On 7 July 2016 the applicant and her lawyer asked the SIZO
governor if she could have a full medical examination, owing to a
deterioration in her health. The governor replied that measures would be
taken in order to carry out the examination.
30. On 8 July 2016 the applicant was examined by a cardiologist, a
neuropathologist, a vascular surgeon, a gastroenterologist, an
ophthalmologist and an endocrinologist from the hospital. She was
diagnosed with most of the above-mentioned diseases and prescribed
necessary medication, which she started taking from 9 July 2016 onwards,
and a diet was recommended.
31. Following an application by the applicant’s lawyer, on 12 July 2016
the Zhovtnevyy Court obliged the SIZO governor to arrange for the
applicant to have medical examinations without delay, in accordance with
Dr N.’s conclusions of 30 June 2016.
32. On 14 July 2016 the applicant had the relevant medical examinations
in hospital: brain imaging; ultrasound examinations of her heart, thyroid
gland, abdominal organs and neck vessels; an X-ray examination; heart
rhythm analysis; and blood and hormone tests. She refused to have an
endoscopy. She was examined by a cardiologist, a neuropathologist, a
general practitioner and an endocrinologist, and was prescribed medication.
It was established: that her state of health was stable and satisfactory and
there were no signs of deterioration; that she did not require hospitalisation
or urgent care; that the prescribed medication was enough to ensure her
medical care at that stage; and that no other measures had been
recommended. Treatment with medication was possible in the SIZO and did
not require special conditions.
33. On 14, 21 and 27 July and 1 August 2016 the applicant was
examined by the SIZO doctor, who recommended that she continue taking
the prescribed medication.
34. On 3 August 2016 Dr N. examined the applicant’s medical
documents and concluded that her diseases, combined with psychological
pressure, high temperatures, physical exertion and bad nutrition, could cause
sudden complications which, in the absence of urgent medical care, might
lead to death. She also considered that quality diagnostics and intensive care
were not possible in the SIZO in the event of complications.
35. During the court hearing of 5 August 2016 (see paragraph 13 above)
the applicant was again examined by Dr N., who noted a visible
deterioration in her health compared with what she had observed on 30 June
2016: increased symptoms of cardiac insufficiency (stage II-B) and cerebral
circulation insufficiency, haemodynamic instability, symptoms of
myocardial ischemia, and a significant increase in the number of extra
systoles and episodes of atrial fibrillation. Dr N. stated that the applicant
needed to be hospitalised for further examination in a specialised medical
facility, as her state of health required dynamic monitoring by a
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moderately grave and that she needed urgent hospitalisation for dynamic
monitoring and emergency care to avoid fatal or incapacitating
complications (“the conclusions of 9 September 2016”). She was also
prescribed medication, some of which she was already taking. According to
the applicant, it was not possible for her to have dynamic monitoring and
emergency care in the SIZO. According to the information provided to the
Government by Dr S., the applicant’s dynamic monitoring was ensured by
the SIZO doctors, who examined her on a number of occasions on their own
initiative.
42. On 19 September 2016 the applicant was examined by a hospital
cardiologist and underwent electrocardiography. The diagnosis given was
the same as before. According to Dr S., the examination demonstrated that
the applicant’s condition was stable at that moment.
43. On 4 October 2016 the SIZO governor informed the applicant’s
lawyer that in urgent situations patients could be sent to specialised medical
facilities.
44. On 12 October 2016 the applicant was examined by a SIZO doctor,
who withheld one of the drugs which had been prescribed to her earlier.
45. Following her release from detention, on 18 October 2016 the
applicant’s lawyer asked the hospital to provide information on whether she
needed further inpatient treatment and, if so, how long such treatment would
last. On 21 October 2016 the hospital replied saying that an answer could be
given only after the applicant had been seen by doctors.
46. In the ruling of 20 October 2016 (see paragraph 18 above) the
Kyivskyy Court held that the applicant’s twenty-four-hour house arrest did
not preclude her attending medical facilities with the permission of the
investigator, prosecutor or court. In upholding that ruling, on 27 October
2016 the Court of Appeal held that the prosecutor had given his mobile
telephone number to the applicant, who could warn him any time if she
needed to visit pharmacies, medical facilities and so on, and that there
would be no obstacles in this regard. Moreover, the applicant had not
provided evidence showing that the authorities had refused to allow her to
visit medical facilities or had placed obstacles in her way. Nor had she
provided any information indicating that she needed to visit those facilities
regularly or at a certain time of the day. Therefore, house arrest was
compatible with her state of health.
47. According to letters from the police and the prosecutor’s office dated
10 March 2017, while the applicant was under house arrest neither the
police nor the prosecutors received any requests from her to visit medical
facilities, or any complaints in this regard.
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48. On 7 July 2016 Ms B. asked the investigator to allow her to visit the
applicant.
49. On 8 July 2016 the investigator replied that, as indicated by the case
material, the applicant was complaining of poor health. A query had
therefore been sent to the SIZO about the possibility of arranging such
visits. The question of giving Ms B. permission to visit the applicant would
therefore be resolved once the reply from the SIZO had been received.
50. On 1 August 2016 the applicant complained to the Zhovtnevyy
Court that the investigator was impeding her right to receive visits from
Ms B. The complaint was returned unexamined, owing to the court’s lack of
jurisdiction.
51. On the same day, having received a positive reply from the SIZO on
25 July 2016, the investigator allowed the applicant to receive two visits:
one from Ms B. and one from Ms A. (another relative). According to letters
from the Security Service and the Department of the State Penal Service
dated 9 and 10 March 2017, the investigator subsequently allowed all visit
requests. During her detention in the SIZO the applicant received one visit
from Ms B. (on 17 August 2016) and visits from other relatives (on 10 and
18 August and 29 September 2016); the applicant was never refused a visit.
52. Article 29 provides, inter alia, that no one can be held in custody
other than pursuant to a reasoned court decision, and only on the grounds of
and in accordance with a procedure established by law.
53. Article 110 § 2 provides that deliberate acts aimed at changing the
State territory or borders, public calls to commit such acts, or the
dissemination of material containing such calls, when committed by a group
of persons, are punishable by five to ten years’ imprisonment, with or
without confiscation of property.
54. Article 369 § 3 provides that a proposal or promise to an official of
an improper advantage, as well as giving such an advantage for the
official’s actions or failure to act using his or her official position, in the
interest of a person who proposes, promises or gives such an advantage, if
committed by a group of persons, is punishable by four to eight years’
imprisonment, with or without confiscation of property.
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THE LAW
I. SCOPE OF THE CASE
60. Following the Government being given notice of the case, the
applicant raised a new complaint under Article 13 of the Convention of the
lack of effective domestic remedies for her complaint under Article 3
concerning her access to medical assistance while under house arrest.
61. The Court notes that the applicant did not raise that complaint in her
application form. In its view, the new complaint is not an elaboration of her
original complaints on which the parties have commented. It therefore
considers that it is not appropriate to take this matter up in the context of the
present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
62. The applicant complained: (i) that she had not been provided with
adequate medical assistance in detention; (ii) that she had not had access to
adequate medical assistance while under house arrest; (iii) that she had been
detained in metal cages during the court hearings between 29 June and
22 September 2016; and (iv) that she had been handcuffed when being
escorted to a courtroom on 12 July 2016. She relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
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usually been allowed to visit the hospital during the day, the investigators
had refused to allow her to stay there for round-the-clock monitoring. It had
therefore been impossible for her to have an examination by means of a
Holter device. Also, according to Dr N.’s conclusions of 9 September 2016
(see paragraph 41 above), she had required urgent hospitalisation, but she
had been totally dependent on the investigator’s will, and had been afraid
that her house arrest could be changed. The medical care that she had
required had been related to specific procedures comprising examinations
lasting longer than twenty-four hours, the use of static equipment and the
involvement of medical staff, procedures which had been impossible to
carry out at home. Moreover, the police could take up to twelve hours to
examine a request to leave the house (see paragraph 66 below), which was
too long in urgent cases.
66. The Government submitted that while she had been under house
arrest the applicant had been entitled to receive medical assistance without
any restrictions, including medical examinations, inpatient and outpatient
treatment in hospitals, and visits from doctors if necessary. Although, under
the 2016 instructions on house arrest, she had been obliged to inform the
police about her intention to leave the house in the event of sickness, and
the police would then check the relevant information within twelve hours
and send it to the investigator or court, she had not made any relevant
requests. Moreover, on 21 December 2016 the court had changed the
conditions of her house arrest, which had simplified her access to medical
assistance.
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68. With regard to the applicant’s placement in metal cages during court
hearings, the Government submitted that that had been provided for by
domestic law. However, on 30 June 2016 she had been released from one of
those cages following an application by her lawyers. Despite that decision,
no similar applications had been made during other hearings. Therefore, she
could not contend that lodging such an application had been an ineffective
remedy, and she had not exhausted the domestic remedies. As to the alleged
use of handcuffs on 12 July 2016, the Government submitted, with
reference to the letter of 6 March 2017 (see paragraph 22 above), that no
handcuffs had been used; moreover, the applicant had not made a complaint
in that regard.
1. Admissibility
69. The Court notes that the applicant’s complaints about medical
assistance in detention, access to that assistance during house arrest and
about being held in metal cages during the court hearings are not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
Furthermore, as regards the Government’s non-exhaustion argument in
respect of the applicant’s complaint about being held in metal cages, the
Court considers that it is closely linked to the merits of that complaint and
thus joins it to the merits. The above complaints must therefore be declared
admissible.
70. However, as regards the applicant’s complaint that handcuffs were
used on her on 12 July 2016, the Court notes that this complaint is general
and not supported by any further details or evidence. Furthermore,
according to the letter of 6 March 2017, handcuffs were not used and the
applicant did not make a complaint in that regard at domestic level.
71. This complaint is therefore manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Merits
(a) Medical assistance in detention
72. The Court reiterates that Article 3 of the Convention imposes an
obligation on the State to protect the physical well-being of persons
deprived of their liberty, for example by providing them with the requisite
medical assistance. The relevant principles were summarised in the case of
Blokhin v. Russia ([GC], no. 47152/06, §§ 136-38, 23 March 2016).
73. Turning to the present case, the Court notes that before being placed
in detention the applicant suffered from a number of chronic diseases which
warranted medical care. It further notes that the core of the applicant’s
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complaint is that, while in detention, she was not provided with treatment
recommended by Dr N. on 30 June, 5 August and 9 September 2016
(see paragraphs 25, 35 and 41). In this regard, the Court notes that there
were certain delays in the implementation of some of those
recommendations, and that not all of them were implemented during the
applicant’s detention.
74. Thus, the full medical examination of the applicant which had been
recommended on 30 June 2016 was conducted two weeks later, on 14 July
2016 (see paragraph 32 above). However, it established that her state of
health was stable and satisfactory at that time, and that further treatment was
possible in the SIZO and did not require special conditions. It does not
therefore appear that the above delay put the applicant’s health at risk
(see, mutatis mutandis, Kavkazskiy v. Russia, no. 19327/13, § 53,
28 November 2017).
75. The Court next notes that it appears that some of Dr N.’s
recommendations were not implemented during the applicant’s detention,
notably: twenty-four-hour electrocardiogram and blood pressure
monitoring, a coronary angiogram (or coronaroventriculography) and a
biopsy of the thyroid (the conclusions of 30 June and 5 August 2016); and
hospitalisation for dynamic monitoring and the provision of emergency care
(the conclusions of 9 September 2016). However, the Court also notes that
those recommendations made in the first two sets of Dr N.’s conclusions
were not repeated in the third set of conclusions (see, similarly, Litvinov
v. Russia, no. 32863/13, § 92, 22 March 2016). Moreover, none of the
above-mentioned recommendations were confirmed by the SIZO or hospital
doctors. Apart from the hospital examination on 14 July 2016, the applicant
received inpatient treatment in the hospital from 22 to 25 August 2016,
following which the doctors concluded that her condition had improved.
She was thus discharged under the follow-up care of a general practitioner
and a cardiologist, and it was recommended that she continue to take the
medication which had been prescribed earlier (see paragraph 38 above).
76. Moreover, the Court does not overlook the fact that Dr N. met the
applicant only three times and gave her conclusions after examinations
during the court hearings of 30 June, 5 August and 9 September 2016. It
agrees with the Government that those examinations – which were
apparently brief, involved limited medical equipment and were not
performed in special conditions – were no substitute for the examinations
carried out by the SIZO doctors who monitored the applicant’s condition on
a regular basis (from 30 June to 2 July, on 14, 21 and 27 July, on 5, 8, 12,
17, 22, 26 and 31 August, on 6, 12 and 16 September, and on 12 October
2016) and the in-depth examinations performed by specialist hospital
doctors during her treatment (on 8 and 14 July, from 22 to 25 August and on
19 September 2016). Dr N. was not the applicant’s attending doctor and she
never visited her in the SIZO or in the hospital, even though apparently she
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was not prevented from doing so. Nor does it appear that the applicant
requested such visits or that they were denied (see paragraph 37 above). In
the Court’s view, Dr N. could not therefore possess the same level of
knowledge about the applicant’s health as the SIZO and hospital doctors
(see Khalvash v. Russia, no. 32917/13, § 62, 15 December 2015). They
were thus best placed to determine her treatment, and there is no evidence or
argument that they acted in bad faith (see, mutatis mutandis, Guk v. Ukraine
[Committee], no. 16995/05, § 72, 8 December 2016; Komarov v. Ukraine
[Committee], no. 4772/06, § 117, 19 January 2017; and Sadkov v. Ukraine,
no. 21987/05, § 85, 6 July 2017).
(b) 77. Lastly, the Court attaches particular weight to the fact that, apart from
stating generally that after her release from detention she had continued to
receive unspecified treatment (which appears to be an obvious fact, given
her chronic diseases), the applicant did not update the Court about her state
of health and apparently did not seek the implementation of any measures
following her release, including those measures recommended by Dr N. but
not implemented during detention (see, mutatis mutandis, Gavula v. Ukraine,
no. 52652/07, § 64, 16 May 2013). Although she complained that she had had
no access to medical assistance between 13 October 2016 and 21 February
2017 while she had been under house arrest (see paragraph 65 above), the
Court finds no violation of Article 3 of the Convention in respect of that
complaint (see paragraphs Access to medical assistance during house arrest
82-85 below). Nor did the applicant inform the Court about any measures
implemented after 21 February 2017. This undermines the applicant’s claim
that she was seriously concerned that not all of Dr N.’s recommendations
were implemented during detention, and that those recommendations were
particularly urgent (see, mutatis mutandis, Golubenko v. Ukraine (dec.), no.
36327/06, § 96, 5 November 2013, and Krivolapov v. Ukraine, no. 5406/07,
§ 78, 2 October 2018). Indeed, such measures might have confirmed the
medical necessity and urgency of those recommendations and shown
whether the strategy chosen by the SIZO and the hospital doctors in respect
of the applicant’s treatment should have been corrected, and whether she
should have been given any treatment or medication other than that which
she had been receiving in detention. Without that information from the
applicant, it is impossible to assess whether there have been any adverse
consequences for her health as a result of the authorities’ failure to
implement some of the recommendations made by Dr N. (see, mutatis
mutandis, Nagorskiy v. Ukraine (dec.), no. 37794/14, § 54, 12 January
2016).
78. It is true that, according to the medical documents, the applicant’s
state of health deteriorated during her detention (notably, her cardiac
insufficiency increased from stage II-A to stage II-B; see also
paragraphs 35, 38 and 39 above). However, this is not in itself an indication
that this happened owing to the allegedly insufficient or inadequate medical
assistance which the applicant received in detention. Given the chronic
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nature of the applicant’s diseases and the lack of sufficient information from
her as to how and how often the diseases manifested themselves before her
detention, and how they were treated, it is difficult to establish to what
extent that deterioration resulted from the alleged inadequacy of the medical
assistance which she received in detention, as such a deterioration may well
have been part of the natural course of her medical conditions or due to
inevitable negative factors inherent in detention, including stress (see
Rudenko v. Ukraine [Committee], no. 5797/05, § 94, 25 November 2010;
Litvinov v. Russia, cited above, § 93; and Komarov v. Ukraine [Committee],
no. 4772/06, § 116, 19 January 2017). Lastly, the Court notes that despite
her cardiovascular issues and the diet which had been recommended to her,
during her detention the applicant received from her relatives cigarettes and
certain foods which were not recommended.
79. It is also true that the SIZO medical unit did not have a cardiologist
or special medical equipment (other than the electrocardiograph). However,
Article 3 of the Convention cannot be interpreted as ensuring that every
detainee should receive medical care at the same level as that offered “in the
best civilian clinics” (see Mirilashivili v. Russia (dec.), no. 6293/04, 10 July
2007). Moreover, the applicant was regularly examined by cardiologists
from the hospital, and underwent complex medical examinations and
inpatient and outpatient treatment there. She was prescribed the necessary
medication, which was adjusted where necessary, and was not prevented
from receiving visits from doctors of her choice, although she did not
request such visits. As to the lack of medication in the SIZO, the Court
notes that the applicant did not complain that the need to buy it had placed a
heavy financial burden on her or her relatives (see Breslavskaya v. Ukraine
(dec.), no. 29964/10, 31 January 2012). Nor did she refer to any specific
occasion when she had been in need of medical assistance but had not
received any.
80. Overall, the Court considers that during her relatively short period of
detention the applicant was regularly monitored by SIZO and hospital
doctors who made efforts to address her health issues. It cannot therefore be
concluded that the medical assistance and treatment provided to her were
inadequate or insufficient.
81. Accordingly, there has been no violation of Article 3 on this account.
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requested such hospitalisation and her requests were refused. Nor has she
provided any information indicating that she required urgent care while she
was under house arrest or asked the authorities to allow hospitalisation but
had her request refused, or that hospitalisation was delayed because of the
2016 instructions on house arrest.
83. The Court also observes that on 27 October 2016 the Court of
Appeal noted that the prosecutor had given his telephone number to the
applicant so that she could warn him any time if she needed to visit a
pharmacy or medical facilities, so that there would be no obstacles in that
regard. The court also noted that the applicant had not provided it with any
information to indicate that the investigator or the prosecutor had refused to
allow her to visit those facilities, or any information showing that she
needed to visit such facilities regularly or at a certain time (see paragraph 46
above). The applicant did not deny that.
84. Lastly, although the applicant alleged that certain medical
procedures, notably Holter monitoring, had not been possible because they
could be carried out only when a person was hospitalised, the Court notes
that, according to publicly available information1, Holter monitoring does
not usually involve hospitalisation; it can be conducted at home and usually
requires two visits to a doctor – one to attach the device and then one to
remove it. However, the applicant did not provide any evidence indicating
that she had wished to have Holter monitoring either in the hospital or at
home, or that she had sought the relevant permission but had been refused.
Nor does it appear from her submissions that any doctors visited her at
home while she was under house arrest, which further undermines her
complaint.
85. In view of the above, the Court cannot conclude that the applicant
did not have access to medical assistance while she was under house arrest.
Accordingly, there has been no violation of Article 3 on this account.
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applications for her to be released from the cage she was in at each hearing.
However, the Court considers that lodging such an application would have
had no prospect of success in any event, given that, under domestic law,
courts were obliged to hold defendants in metal cages during hearings (until
those cages were replaced by glass cabins), and no alternatives were
available. Indeed, the Kyivskyy Court, the Zhovtnevyy Court and the Court
of Appeal referred, either expressly or in substance, to the 2015 Instruction
which barred them from releasing the applicant from the metal cages (see
paragraphs 21-23 above). The Court therefore agrees with the applicant that
her release on that one occasion was not provided for by domestic law and
could not be regarded as established practice, and dismisses the
Government’s non-exhaustion argument (see paragraph 68 above).
88. The Court further notes that the domestic courts never assessed
whether there were any security risks in the courtroom which required that
the applicant, who was also guarded by convoy officers, be held in a metal
cage. Nor did the Government provide any evidence indicating that there
had been any such risk. Moreover, as a public figure, the applicant was
shown behind metal bars to not only the participants in the hearings, but
also a much wider audience, owing to the media coverage (see Korban,
cited above, § 133).
89. The Court has held that holding a person in a metal cage during a
trial constitutes in itself an affront to human dignity in breach of Article 3
(see Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08,
§ 138, ECHR 2014 (extracts)). That remains pertinent in the present case.
90. There has accordingly been a breach of Article 3 of the Convention.
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ALEKSANDROVSKAYA v. UKRAINE JUDGMENT
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.”
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(b) Merits
95. Like any deprivation of liberty under Article 5 § 1 of the
Convention, an arrest under sub-paragraph (c) must be “lawful” and “in
accordance with a procedure prescribed by law”. Those two expressions
refer essentially to domestic law and lay down the obligation to comply
with its substantive and procedural rules (see Merabishvili v. Georgia [GC],
no. 72508/13, § 186, 28 November 2017). The issue before the Court is
therefore whether the applicant’s arrest was lawful in domestic terms.
96. The Court notes that under the domestic law, deprivation of liberty
in the absence of a court decision is possible only in a limited number of
situations. Thus, under Article 208 § 1 (2) of the CCP, referred to in the
applicant’s arrest report, an investigator can arrest a person if that person
has been pointed out by eyewitnesses or victims, or has clear traces of a
crime on his person or on his clothing immediately after the offence (see
paragraph 58 above).
97. In this regard, the Court notes that the applicant was arrested on
28 June 2016 for a crime which, according to the arrest record, she had
committed on 24 June 2016. Prior to her arrest, on 27 June 2016 the
investigators had applied to the court for a warrant to search her flat, and on
28 June 2016 they had obtained such a warrant. It does appear from the
parties’ submissions that the items seized during the search served as
justification for the applicant’s arrest, under Article 208 § 1 (2) of the CCP.
It does not therefore appear that at the moment of her arrest the investigators
were treating the situation as one which was taking place “immediately after
the offence” (as required by the above provision) and was thus preventing
them from applying for judicial authorisation of the arrest in the same way
that they had applied for authorisation of the search the day before it had
taken place. Indeed, the reference to Article 208 § 1 (2) in the arrest report
was followed by the presentation of the alleged facts. However, it did not
contain any information required by this provision. In the Court’s view,
without that information, the arrest report did not constitute a meaningful
guarantee showing that the applicant’s arrest had been effected on the basis
of a reasonable suspicion that she had committed a crime (see Grinenko
v. Ukraine, no. 33627/06, § 83, 15 November 2012; Malyk v. Ukraine,
no. 37198/10, § 27, 29 January 2015; and Kotiy v. Ukraine, no. 28718/09,
§ 45, 5 March 2015). Lastly, the Court notes that the applicant complained
about her arrest before the Kyivskyy Court, but the court did not examine
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24
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ALEKSANDROVSKAYA v. UKRAINE JUDGMENT
(b) Merits
105. Under Article 5 § 3, justification for any period of detention, no
matter how short, must be convincingly demonstrated by the authorities.
The requirement for a judicial officer to give relevant and sufficient reasons
for the detention – in addition to the persistence of reasonable suspicion –
applies already at the time of the first decision ordering detention on
remand. Furthermore, when deciding whether a person should be released or
detained, the authorities must consider alternative measures. Justifications
which have been deemed “relevant” and “sufficient” have included the
danger of absconding, the risk of pressure on witnesses or of evidence being
tampered with, the risks of collusion, reoffending or causing public disorder
and the need to protect the detainee (see Buzadji v. the Republic of Moldova
[GC], no. 23755/07, §§ 87, 88 and 102, ECHR 2016 (extracts)). Those risks
must be duly substantiated and the authorities’ reasoning on those points
cannot be abstract, general or stereotyped (see Merabishvili, cited above,
§ 222). Thus, the risk of absconding cannot be gauged solely on the basis of
the severity of the possible sentence; it must be assessed with reference to
other factors, such as the accused’s character, morals, assets, links with the
jurisdiction, and international contacts (ibid., § 223). It is essentially on the
basis of the reasons set out in the domestic judicial decisions and of the
arguments made by the applicant in his or her requests for release or appeals
that the Court is called upon to decide whether or not there has been a
breach of Article 5 § 3 (ibid., § 225).
106. Turning to the present case, the Court notes at the outset that, as
explained in Grubnyk v. Ukraine (no. 58444/15, §§ 119 and 120,
17 September 2020), Article 176 § 5 of the CCP did not deprive the
domestic courts of the power to release a defendant where they considered
that the prosecution had failed to prove that the defendant presented a risk
of absconding or that there were other risks which could justify
detention. This is also confirmed by the present case: when ordering the
applicant’s continued detention, the domestic courts did not consider it
sufficient to limit their assessment to reference to Article 176 § 5. On the
contrary, they attempted to provide reasons for their decisions by reference
to other factors (see paragraphs 10, 12, 14 and 16 above). Lastly, on
13 October 2016 (see paragraph 17 above) the Court of Appeal ordered the
applicant’s release without even mentioning Article 176 § 5, even though
she remained charged with an offence covered by that provision (see also
Avraimov v. Ukraine [Committee], no. 71818/17, § 61, 23 March 2021).
107. That said, the Court notes that the Constitutional Court held that
Article 176 § 5 had the potential to distort the domestic courts’
decision-making process and lead them to issue insufficiently reasoned
decisions (see paragraph 59 above, and Grubnyk, cited above, § 117).
Accordingly, it will examine whether the courts’ reasoning was distorted by
the above provision so that they failed to give “relevant and sufficient”
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ALEKSANDROVSKAYA v. UKRAINE JUDGMENT
reasons for their decisions in the present case (see also Avraimov, cited
above, § 63).
108. The Court notes that in its initial detention order of 30 June 2016
the Kyivskyy Court referred to: risks under Article 177 § 1 (1), (3) and (4)
of the CCP which, it stated generally, “had been established”; the severity of
the sentence which the applicant faced; “information about her”; and the
fact that she had not admitted her guilt (see paragraph 10 above). However,
its general reference to Article 177 was not supported by any specific fact or
element. Thus, the severity of the relevant sentence alone could not justify
the applicant’s continued detention (see Idalov v. Russia [GC], no. 5826/03,
§ 145, 22 May 2012). As to the argument that she did not admit her guilt, it
ran counter to freedom from self-incrimination and the presumption of
innocence, and was not therefore relevant (see Lutsenko v. Ukraine,
no. 6492/11, § 72, 3 July 2012). Nor did the court explain which
“information” about the applicant it took into account.
109. In upholding the above decision of 30 June 2016, on 22 July 2016
the Court of Appeal added that the applicant’s son lived in Russia and
maintained relations with her, that she had managerial skills, a certain
reputation and was popular in the Kharkiv Region, and that she had
previously been a member of parliament and a party official (see
paragraph 12 above). Those circumstances were sufficient for it to believe
that, if at large, the applicant might abscond, influence witnesses or
otherwise obstruct the proceedings. It did not explain why it considered that
the mere fact that the applicant’s son lived in Russia and that she maintained
relations with him presented a risk of her absconding, especially given the
applicant’s submissions that she was a lady of advanced age with health
issues, and that she had a permanent place of residence in Kharkiv and an
occupation, a spotless reputation, positive character references and so on.
Nor did the court explain how the applicant’s managerial skills increased
the alleged risks. As to the remaining elements mentioned by the Court of
Appeal, the Court notes that on 13 October 2016 the same court held that
the fact that the applicant had a certain reputation and was popular in the
Kharkiv Region, and had been a member of parliament and a party official,
spoke to the strength of her social ties and the fact that the alleged risks had
reduced (see paragraph 17 above). Given that those factors were eventually
disregarded in the process of establishing the alleged risks, the Court fails to
see how they had been relevant in establishing such risks a few months
earlier.
110. In their further decisions extending the applicant’s detention, the
courts largely referred to the same grounds as those in the decisions of
30 June and 22 July 2016, notably the severity of the charges against her
and the risk of her absconding or influencing witnesses, without providing
any new details or grounds (see paragraphs 10, 12, 14 and 16 above).
Furthermore, in its decision of 5 August 2016 the Kyivskyy Court held that
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ALEKSANDROVSKAYA v. UKRAINE JUDGMENT
there were no grounds for changing the preventive measure in respect of the
applicant, as her defence team had not proved that the alleged risks had
reduced (see paragraph 13 above). However, Article 5 § 3 of the Convention
implies an opposite approach: it is for the national authorities to indicate
grounds for a person’s continuing detention (see Neumeister v. Austria,
27 June 1968, § 4, Series A no. 8).
111. In addition, there is no indication that the domestic courts duly
examined alternative measures. Even though they stated generally that they
had examined such a possibility, they did not elaborate on why none of
those measures could be applied, apart from referring to Article 176 § 5 of
the CCP. Nor did they – until the applicant’s release – analyse her repeated
references to the fact that several persons were willing to be her sureties.
112. The Court lastly notes that in the majority of their decisions the
courts referred to Article 176 § 5 twice or even three times. In its view, the
courts’ repeated references to that provision cannot but reinforce the
conclusion that it distorted their decision-making process, and that their
resulting decisions were not based on “relevant and sufficient” reasons.
113. There has accordingly been a violation of Article 5 § 3 of the
Convention.
115. The applicant submitted that she had not been allowed to receive
visits from Ms B. “until the middle of August 2016”. She further submitted
that under domestic law, the exercise of the right to family visits depended
on the investigator’s or the court’s discretion. In her opinion, the
investigator’s response of 8 July 2016 (see paragraph 49 above) had been
uncertain; it had not been clear about how visits from Ms B. might affect
her health. With reference to Shalimov v. Ukraine (no. 20808/02, § 88,
4 March 2010), the applicant further submitted that the relevant domestic
law contained no safeguards against arbitrariness or abuse. Ms B.’s visits
would not have entailed any risk of disorder or other negative consequences.
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ALEKSANDROVSKAYA v. UKRAINE JUDGMENT
On the contrary, they would have had only a positive impact on the
applicant’s health and psychological well-being.
116. The Government noted that on 7 July 2016 Ms B. had asked the
investigator to allow her to visit the applicant. On the next day the
investigator had sent a query to the SIZO, and after he had received a
positive reply, on 1 August 2016 he had allowed Ms B. to visit the
applicant. With reference to the letters of 9 and 10 March 2017
(see paragraph 51 above), the Government also noted that all further visit
requests made by the applicant’s relatives had also been allowed. On no
occasion during her detention had the applicant been refused visits.
117. The Court notes that, unlike in Shalimov (cited above, § 88; see
also Titarenko, cited above, § 102), in the present case the applicant was not
denied family visits. Although she alleged that she had not been allowed to
receive visits from Ms B. until the middle of August 2016, the Court notes
that on 8 July 2016 the investigator did not reject Ms B.’s request of 7 July
2016, but stated that the question of visits to the applicant would be
resolved once a reply had been received from the SIZO (see paragraph 49
above). Indeed, after receiving a positive reply from the SIZO on 25 July
2016, on 1 August 2016 he allowed the request (see paragraph 51 above).
118. Although it took three and a half weeks to decide on Ms B.’s
request, this was due to the fact that the investigator firstly had to receive
information from the SIZO. Taking into account the circumstances of the
present case, the Court does not consider that his decision to wait for such
information was arbitrary or manifestly unreasonable. Nor did the applicant
claim that, in doing so, the investigator had acted in bad faith or had
intended to deny her visits, or that the period of time which he had taken to
consider Ms B.’s request had had any negative consequences for her. In
relation to this last point, the Court also notes that even though the applicant
was in the SIZO from 30 June 2016 onwards, Ms B. did not ask the
investigator to allow her to visit the applicant until 7 July 2016.
Furthermore, although the investigator allowed the request on 1 August
2016, Ms B. did not visit the applicant until 17 August 2016. Lastly, the
Court notes that, apart from that single visit, apparently Ms B. did not
request any further visits (see paragraph 51 above).
119. In sum, Ms B.’s request to visit the applicant was neither refused
nor left unanswered (see also Yaroshovets and Others v. Ukraine,
nos. 74820/10 and 4 others, § 175, 3 December 2015). Although it took the
authorities some time to decide on the request, the applicant has not
demonstrated that that had any negative consequences for her Article 8
rights. Therefore, her complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
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126. Having regard to the facts of the case, the parties’ submissions and
its findings under Articles 3 and 5 of the Convention (see paragraphs 86-90,
95-98 and 105-113 above), the Court considers that it has examined the
main legal questions raised in the present application, and that there is no
need to give a separate ruling on the admissibility and merits of the
above-mentioned complaints (see Centre for Legal Resources on behalf of
Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
A. Damage
131. The applicant claimed 16,1602 Ukrainian hryvnias (UAH) for legal
services provided to her by Mr Shadrin at domestic level and at the initial
stage of the proceedings before the Court, EUR 3,750 for legal services
provided to her by Mr Tarakhkalo at the advanced stage of the proceedings
before the Court (that amount to be transferred directly to that lawyer’s bank
account) and UAH 434.513 for correspondence with the Court. In support of
her claims, she provided a contract for legal services concluded with
Mr Shadrin, a time sheet showing that he had spent 98.3 hours on the case at
domestic level and in the Court proceedings, at an hourly rate of EUR 150
(EUR 14,745 in total), and two bank receipts confirming that she had paid
him UAH 16,160 under that contract; she also provided a contract for legal
services concluded with Mr Tarakhkalo and a time sheet showing that he
had spent twenty-five hours preparing her observations on the case, at an
hourly rate of EUR 150. She also submitted postal receipts for the amount
claimed in this regard.
132. The Government left the claim for postal expenses to the Court’s
discretion. As to the legal services provided by Mr Tarakhkalo, they
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C. Default interest
134. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
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6. Holds
(a) that the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 15,600 (fifteen thousand six hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,563 (three thousand five hundred and sixty-three euros),
of which EUR 3,000 (three thousand euros) shall be transferred
directly to Mr Tarakhkalo’s bank account, plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
33