European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21011/06
by Igor Petrovych FRANKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 August 2010 as a Chamber composed of:

         Peer Lorenzen, President,
         Renate Jaeger,
         Karel Jungwiert,
         Mark Villiger,
         Isabelle Berro-Lefèvre,
         Mirjana Lazarova Trajkovska,
         Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 13 May 2006,

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 Igor Petrovych Franko, is a Ukrainian national who was born in 1958 and lives in Chervonograd, Ukraine.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 30 December 2004 the Chervonograd Town Court found the applicant and two other individuals, A. and P., guilty of extortion. The applicant was sentenced to five years' imprisonment, suspended for two years. The applicant's representative was present at the court.

The applicant did not appeal against the judgment. According to him, he did not receive a copy of the decision from the court's registry and then he was advised not to appeal because one of his co-defendants and the prosecutor had already lodged appeals.

On 27 May 2005 the Lviv Regional Court of Appeal changed the judgment of the first-instance court, sentenced the applicant to two and a half years' imprisonment and gave an order for him to be detained. The court also quashed the judgment in the part concerning one of the applicant's co-defendants. The applicant and his defence counsel were present at the court. According to the applicant, a Mr M. had not been questioned by the courts as a witness.

On the same day, the applicant was placed in Lviv SIZO No. 19.

On 25 June 2005 the applicant appealed in cassation. His appeal contained no mentioning of the court's failure to question Mr M. as a witness.

On 15 November 2005 the Supreme Court upheld the decision of the lower courts.

According to the applicant, even after the decision of the Supreme Court, because the proceedings against one of his co-defendants were still pending, he remained in Lviv SIZO No. 19. He maintained that the SIZO was overcrowded (thirty inmates in a space designed to hold twenty) and the quality of the food was so poor that he was almost starving.

COMPLAINTS

The applicant complained under Article 3 of the Convention about the conditions of his detention in Lviv SIZO No. 19. Relying on Articles 5, 6, 7 and 13 of the Convention, he also challenged the outcome of the criminal proceedings against him, claiming that one of the witnesses was not questioned by the courts and that he was prevented from lodging an appeal.

THE LAW

1.  The applicant complained about the conditions of his detention in Lviv SIZO No. 19. He referred to Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant further complained about the alleged unfairness and outcome of the criminal proceedings against him. He maintained that the courts failed to correctly establish the circumstances of the case, that they did not question one of the witnesses and that they wrongly assessed the evidence in the case. He also maintained that he was prevented from lodging an appeal. He refers to Articles 5, 6, 7 and 13 of the Convention.

Having carefully examined the applicant's submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning conditions of his detention in Lviv SIZO No. 19;

Declares the remainder of the application inadmissible.

Claudia Westerdiek                                                                Peer Lorenzen
       Registrar                                                                              President