Information Note on the Court’s case-law No. 162
April 2013
Tymoshenko v. Ukraine - 49872/11
Judgment 30.4.2013 [Section V]
Article 5
Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation

Article 18
Restrictions for unauthorised purposes
Deprivation of opposition leader’s liberty for reasons other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence: violation

Facts – The applicant was the leader of one of a leading opposition party and a former Prime Minister. In April 2011 criminal proceedings were brought against her for alleged excess of authority and abuse of office and in August 2011 the trial court ordered her detention pending trial. She was later convicted of the offences charged and given a prison sentence.
In her application to the European Court the applicant complained, inter alia, of her conditions of detention, of inadequate medical treatment in detention and of ill-treatment during a transfer to hospital (Article 3 of the Convention), that her detention was arbitrary and that she had had no legal remedy to challenge it or to seek compensation (Article 5) and that she had been detained for political motives (Article 18 in conjunction with Article 5).
Law – Article 3
(a)  Conditions of her pre-trial detention – The Court accepted that the applicant may have experienced certain problems on account of the material conditions during part of her detention – in particular limited access to daylight, lack of hot water and lack of heating during limited periods . She had also been unable to take daily walks owing to problems with mobility when a stick or crutch could have facilitated matters. However, while the applicant’s situation may have been uncomfortable, it had not been so harsh as to bring it within the ambit of Article 3.
Conclusion: inadmissible (unanimously).
(b)  Alleged lack of appropriate medical treatment during detention – It was clear from the materials before the Court that the applicant’s health had received considerable attention from the Ukrainian authorities, who had invested efforts far beyond the normal health-care arrangements available for ordinary detainees in Ukraine. The applicant, however, had been extremely cautious and because of a lack of confidence in the authorities had regularly refused to allow most of the medical procedures that were suggested to her. While the Court was mindful that patient trust was a key element of the doctor-patient relationship and could be difficult to create in detention, patients nevertheless had a responsibility to communicate and cooperate with health authorities and there was no specific incident noted in the applicant’s medical history while in detention which could have explained such a total lack of confidence on the applicant’s part. The European Committee for the Prevention of Torture (CPT) had visited one of the facilities in which the applicant was detained and had not raised any particular concern over the appropriateness of the medical care provided to her. The applicant had also been transferred to an outside hospital to receive specialist care. In sum, the domestic authorities had afforded the applicant comprehensive, effective and transparent medical assistance.
Conclusion: inadmissible (unanimously).
(c)  Alleged ill-treatment during her transfer to hospital – Several bruises had appeared on the applicant’s body during her detention. That alone called for an explanation by the State authorities as to their origin. The location of the bruises – on her stomach and arms – was consistent with her account that she had been violently pulled from her bed and punched in the stomach on the day of her transfer to the hospital. Nevertheless, the Court could not ignore the medical evidence before it that the apparent age of the bruises did not correspond with the time she had indicated and that there had been other possible origins of the bruising which did not involve external trauma. Those findings could only have been satisfactorily confirmed or refuted if she had undergone a full forensic medical examination, which she had refused to allow on two occasions. Given the absence of such forensic evidence as a result of her decision not to undergo the examination, it had not been established to the necessary standard of proof that the bruising had resulted from treatment in breach of Article 3 during her transfer to hospital. Her refusal to undergo a forensic medical examination had also hindered the effectiveness of the investigation into her complaint of ill-treatment, which investigation had therefore been “effective” for the purposes of Article 3.
Conclusion: no violation (four votes to three).
Article 5 § 1: The applicant’s detention pending trial had been ordered for an indefinite period, which in itself was contrary to the requirements of Article 5 and was a recurrent issue resulting from legislative lacunae. Further, no risk of absconding was discernible from the accusations which had been advanced among the reasons for her detention: these were all of a minor nature and had not resulted in her failing to attend the hearings. In fact, the main justification for her detention indicated by the judge had been her alleged hindering of the proceedings and contemptuous behaviour, which was not among the list of reasons that could justify deprivation of liberty under Article 5 § 1. Nor was it clear how the replacement of the applicant’s obligation not to leave town by her detention was a more appropriate preventive measure in the circumstances. Given that the reasons indicated for her pre-trial detention remained the same until her conviction, the entire period of pre-trial detention had been arbitrary and unlawful.
Conclusion: violation (unanimously).
Article 5 § 4: The domestic courts’ various reviews of the lawfulness of the applicant’s detention did not satisfy the requirements of Article 5 § 4 as they were confined to a mere statement that no appeal lay against a ruling on change of a judicially ordered preventive measure with the result that the deficient reasoning initially applied was reiterated. There was no indication that the domestic courts had considered the specific and pertinent arguments that had been advanced by the applicant in her numerous applications for release. Indeed, the Court had already found in other cases that on the whole Ukrainian law did not provide for a procedure to review the lawfulness of continued detention after the completion of a pre-trial investigation that would satisfy the requirements of Article 5 § 4.
Conclusion: violation (unanimously).
Article 5 § 5: Under Ukrainian law the right to compensation arose in particular when the unlawfulness had been established by a judicial decision. However, there was no procedure under Ukrainian law for seeking compensation for a deprivation of liberty that had been found to be in breach of Article 5 by the European Court. This lacuna had already been noted in other cases against Ukraine.
Conclusion: violation (unanimously).
Article 18 in conjunction with Article 5: An applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could reasonably be inferred from the context. A mere suspicion that the authorities had used their powers for some other purpose than those defined in the Convention was not sufficient to prove that Article 18 was breached.
The applicant’s case showed an overall similarity to that of Lutsenko v. Ukraine (no. 6492/11, 3 July 2012, Information Note no. 154). As in that case, soon after a change of power, the applicant, who was the former Prime Minister and the leader of the strongest opposition party, was accused of abuse of power and prosecuted. The Court had already established that, although the applicant’s detention was formally effected for the purposes envisaged by Article 5 § 1 (c) of the Convention, both the factual context and the reasoning advanced by the authorities suggested that the actual purpose of the measure was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the proceedings. Accordingly, the restriction of the applicant’s liberty was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.

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This summary by the Registry does not bind the Court.
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