FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36272/04
by Kliment Yencherovich PAK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 March 2010 as a Chamber composed of:

and ,
Having regard to the above application lodged on 29 September 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kliment Yencherovych Pak, is a Kazakhstani national who was born in 1947 and lives in Astana. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date the applicant arrived in Kyiv, Ukraine and applied for refugee status.
On 8 December 2003 the Podilskyy District Police Office of Kyiv (“the Police Office”) arrested the applicant on suspicion of vagrancy.
On 9 December 2003 the local prosecutor authorised the applicant’s detention.
The same day the local authorities refused to grant the applicant refugee status.
On 10 December 2003 the Police Office placed the applicant in the Kyiv Police Holding Centre for vagrancy.
According to the applicant, the cell in which he was held was always overcrowded; he was not provided with sufficient food; he could not take a shower; and he developed back and skin problems there.
On 6 January 2004 the applicant was released.
On 4 May 2005 the applicant instituted civil proceedings in the Podilskyy District Court of Kyiv against the Police Office, claiming that his arrest and detention had been unlawful and seeking compensation on this account.
On 27 February 2006 that court left the claim unexamined in view of the applicant’s repeated failure to appear for the hearings. The applicant did not appeal against that decision.
On 17 February 2007 the domestic authorities forbade the applicant to enter and stay in Ukraine for three years for having breached the regulations on foreigners staying in Ukraine. Following that decision the applicant left Ukraine for Latvia, where he stayed for a while, and subsequently went back to Kazakhstan.
B.  Relevant domestic law
1.  The Police Act of 20 December 1990 (as worded at the material time)
Section 11 of the Act provided, inter alia, that the police authorities could – subject to a prosecutor’s warrant – detain persons who were suspected of vagrancy for a period of up to thirty days.
Section 25 of the Act provided, inter alia, that actions of a police officer could be challenged, in accordance with the established procedure, to a supervising police authority, a prosecutor, or a court.
2.  Code of Civil Procedure of 18 July 1963 (in force at the material time)
Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, action or omission of a State body, a legal entity or an official, could lodge a complaint with a court.
According to Article 248-6 of the Code, if such complaint concerned a dispute that had to be resolved in the course of civil adversary proceedings, the court had to leave the complaint unexamined and explain to the claimant his right to lodge a civil claim on a general basis.
Under Article 248-7 of the Code, if a complaint lodged under Article 248-1 of the Code was substantiated, the court could declare the decision, act or omission unlawful and oblige the respondent authority or official to put an end to the violation found. The court could quash the obligation imposed on or the measures applied to the claimant or restore his or her rights in another manner. The court could further order immediate execution of its decision.
COMPLAINTS	
1.  The applicant complained under Article 5 § 1 of the Convention that his arrest on 8 December 2003 and subsequent detention until 6 January 2004 were unlawful.
2.  He also complained under Article 5 § 4 of the Convention of having been unable to bring court proceedings by which the lawfulness of his arrest and detention could have been decided and following which his release would have been ordered.
3.  The applicant complained of a violation of Article 5 § 5 of his Convention in that he had not been able to receive compensation for the allegedly unlawful arrest and detention.
4.  The applicant complained that the physical conditions of his detention in the Kyiv Police Holding Centre were unsatisfactory.
5.  Relying on Article 1 of Protocol No. 12 the applicant alleged that he had been discriminated against on ground of his nationality in the course of his arrest and detention.
THE LAW
1.  The applicant complained that his arrest on 8 December 2003 and subsequent detention until 6 January 2004 had been unlawful. He relied on Article 5 § 1 of the Convention which, in so far as relevant, provides as follows:
“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:
...
(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”
The Government submitted that the applicant had failed to exhaust domestic remedies since he did not complain to the prosecutor that there had been no grounds for his detention. As regards judicial remedies, they maintained that the applicant should have lodged a complaint under Article 248-1 of the Code of Civil Procedure (the “CCvP”) by which the lawfulness of his detention could have been reviewed and his release ordered. They also contended that the applicant had failed to pursue his civil claim for damages which he had submitted to a domestic court after his release.
The Government further contended that, even assuming there had been no remedies to exhaust, the complaint was introduced outside the six-month period. Lastly, they asserted that the applicant had abused his right of petition in so far as he had concealed from the Court certain information relevant to his application.
The applicant disagreed with the Government.
The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with a complaint after all domestic remedies have been exhausted. However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective. In addition, according to the “generally recognised rules of international law”, there may be special circumstances which absolve applicants from the obligation to exhaust the domestic remedies at their disposal. At the same time, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Sejdovic v. Italy [GC], no. 56581/00, §§ 43-46, ECHR 2006‑II). Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (Selmouni v. France [GC], no. 25803/94, §76, ECHR 1999‑V).
Turning to the present case, the Court considers that the Government’s contention as to recourse to the prosecutor cannot be endorsed. The Court has held that a complaint to a prosecutor on account of actions or inactivity of the investigator in the criminal proceedings had not been regarded as an effective remedy in view of the lack of adequate safeguards for an independent and impartial review by that domestic authority (see Merit v. Ukraine, no. 66561/01, §§ 62-63, 30 March 2004). The Court finds that in the present case the recourse to the prosecutor on account of lack of grounds for detention, which had been authorised by the other prosecutor, would equally lack appropriate safeguards for independent and impartial review. Accordingly, this aspect of the Government’s objection should be dismissed.
The Court observes that after his release the applicant raised the substance of his complaint under Article 5 § 1 of the Convention in the civil claim which he lodged with the domestic court. The consideration of the applicant’s civil claim could lead to the acknowledgment of the violation complained of and offering appropriate redress. The Court therefore considers that this remedy could be regarded as an effective one in the applicant’s case. However, the applicant failed to pursue it. In particular, he failed to appear for the court hearings and did not appeal against the decision of 27 February 2006 by which the first-instance court left his claim unexamined. The Court does not discern any special circumstances absolving the applicant from using this remedy.
In view of the above the Court concludes that the applicant failed to comply with the rule of exhaustion of domestic remedies. The Court therefore does not find it necessary to deal with the other Government’s objections, including a possible action under Article 248-1 of the CCvP, and rejects this complaint in accordance with Article 35 § 1 and 4 of the Convention.
2. The applicant complained that he had not been able to bring court proceedings claiming unlawfulness of his arrest and seeking his release. He relied on Article 5 § 4 of the Convention which reads as follows:
“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government repeated their objection that the applicant should have raised this issue before the prosecutor and the court. In addition, they maintained that the complaint was inadmissible under the six-month rule.
The applicant disagreed.
The Court notes at the outset that, given the purpose of Article 5 § 4 of the Convention, its application is limited to the period when a person is actually detained. This Convention provision does not cover the proceedings brought by an applicant after his release (see Reinprecht v. Austria, no. 67175/01, § 51, ECHR 2005‑XII). Accordingly, the civil proceedings instituted by the applicant on 4 May 2005, that is, after his release, cannot be examined under this head.
It further refers to its finding above that recourse to the prosecutor cannot be considered as an effective remedy and rejects the relevant Government’s objection.
As to a complaint under Article 248-1 of the CCvP, the Court notes that the domestic court was competent to review the lawfulness of the applicant’s detention and, in an appropriate case, immediately order his release. Given that the applicant failed to use that remedy, the Court cannot speculate whether or not the applicant’s complaint under Article 248-1 of the CCvP would be considered in compliance with the requirements of Article 5 § 4, and accordingly it is not in a position to assess the effectiveness of existing remedy in practice in the circumstances of the present case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained that he had been unable to receive compensation for his allegedly unlawful arrest and detention. He relied on Article 5 § 5 of the Convention which provides as follows:
“5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
The Court observes that the right to compensation, set forth in Article 5 § 5 of the Convention, presupposes that a violation of one of the preceding paragraphs of that Article has been established. In the present case no such conclusion has been made either by the domestic authorities or by the Court. Accordingly, Article 5 § 5 of the Convention is not applicable (see Slavcho Kostov v. Bulgaria, no. 28674/03, §§ 73 and 74, 27 November 2008).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
4. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President