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FIFTH SECTION

Application no. 66217/10
Aleksandr Ivanovich KRASNYUK
against Ukraine
lodged on 30 October 2010

STATEMENT OF FACTS

The application was lodged by Ms Lyudmila Kotlyar acting on behalf of Mr Aleksandr Ivanovich Krasnyuk, a Ukrainian national who was born in 1962 (“the applicant”). Ms Kotlyar is the applicant’s partner. She provided an authority form signed by the applicant on 2 March 2011.

A.  The circumstances of the case

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

1.  The criminal proceedings against the applicant

On 27 November 2006 the applicant was arrested for injuring his then mother-in-law on 26 November 2006. In his submissions to the domestic authorities, including to the trial court, the applicant stated that there had been no arrest warrant issued in his respect and that his detention from 27 November to 7 December 2006 had not been based on lawful grounds. According to the applicant, on 8 December 2006 Mr B., a judge from the Izyum Court, issued a decision dated 27 November 2006 finding the applicant guilty of disorderly conduct, an administrative offence under the Ukrainian law, and sentencing him for an unspecified period of administrative detention.

In the course of the arrest on 27 November 2006 the applicant was allegedly beaten up and handcuffed without lawful grounds for this. The applicant’s complaints about his alleged ill-treatment during the arrest were rejected as unsubstantiated by the prosecutors’ decision on 3 December 2007. The applicant did not challenge that decision before the courts, though he made similar allegations in the course of his trial (see below).

On 8 December 2006 the applicant was officially charged with intentional infliction of bodily injuries. According to the applicant, this was done outside the period allowed by the procedural regulations.

Subsequently, he was also charged with hooliganism and robbery.

On 8 February 2007 the case was referred for trial to the Izyum Town Court. It was reconsidered by that court on three occasions. In particular, its judgments of 23 January 2008 and 17 November 2009 were quashed by the Kharkiv Regional Court of Appeal on 19 March 2009, for certain irregularities at the investigation stage, and on 9 September 2010, for the wrongful assessment of the facts by the Izyum Court, respectively.

On 27 July 2011 the Izyum Court delivered a new judgment, finding the applicant guilty of hooliganism, robbery and infliction of bodily injuries and sentenced him to eight years’ imprisonment. The court noted that the applicant’s allegations that the police officers had forged the investigation materials had been checked by the prosecutors in the course of the trial who had found them unsubstantiated. There was no evidence that the investigators had used unlawful means of investigation in the case or that there had been any other procedural irregularities.

The applicant’s appeal against the judgment of 27 July 2011 is currently pending before the Kharkiv Regional Court of Appeal.

According to the applicant, in the course of the proceedings he has not been allowed to study all the materials of the case; the lawyers appointed to him by the investigators and the trial court have not provided him with adequate legal assistance; his partner has not been allowed to take part in the proceedings as his defence pursuant to Article 44 of the Code of Criminal Procedure of 1960, which gives such a possibility to close relatives of defendants; the judges dealing with his case have been biased; principal witnesses have not been summoned and many of the applicant’s procedural requests and objections have been unlawfully rejected.

2.  The applicant’s detention

Throughout the criminal proceedings against him the applicant has been detained in various detention centres, including police detention units, the Oleksiivska Colony No. 25, and the Kharkiv Temporary Detention Centre No. 27 (“the SIZO”).

According to the applicant, he has been detained in overcrowded cells in which sanitary conditions have been unacceptable. There has been no access to natural light, while electric light has been insufficient. Ventilation has not been sufficient either. During winter periods the applicant was transported to court hearings in unheated vans without warm clothing. Such trips lasted for about three hours.

On an unspecified date the applicant was placed in solitary confinement in the SIZO for 6 days during which he was subjected to “physical pressure” and threatened in “a cruel form”. The applicant has not been allowed to receive parcels with home-made food and some hygiene items, while he claims that products being sold in the SIZO are expensive.

Because of the conditions in which he has been detained, the applicant has suffered from allegedly serious health problems. The applicant claims that he had flu on a number of occasions and his eyesight had seriously dropped. Prior to his arrest on 27 November 2006 he needed glasses of 1.25 – 1.50 dioptres, while on 16 June 2011 an ophthalmologist who examined the applicant in detention noted that he needed glasses of above 4 dioptres. The applicant states that he has not been given medical assistance for his health problems, of which he has complained to the domestic authorities, including the courts. The applicant argues that he cannot provide more detailed information in respect of his medical situation because he has not been adequately examined by doctors and cannot obtain any documents from his personal file in the SIZO.

While the applicant was detained in the SIZO in August 2010, his partner complained to the prosecutors, alleging that the conditions of the applicant’s detention in the SIZO were inhuman and degrading. In particular, she argued that the applicant was detained in overcrowded, unsanitary and damp cells without ventilation. According to the applicant’s partner, the temperature in the cells often reached 60 degrees Celsius. By a letter of 18 August 2010, the prosecutors informed the applicant’s partner that her complaint could not be examined as she did not provide documents authorising her to act on behalf of the applicant.

On 18 August 2011 the applicant was transferred to the Oleksiivska Colony. The applicant alleges that on that day in the Colony he had to take off his clothes in order to undergo personal search. The applicant remained without clothes for about nine hours, during which he was questioned by the guards. The applicant felt humiliated and insulted. All documents which he had with him, including copies from his case file, were taken by the guards and some of the documents were destroyed in his presence. When the applicant resisted the guards’ actions, he was taken to the Colony’s duty unit (??????? ???????) where he was forced to stand facing the wall, which was about a meter away, with his feet and hands spread and the hands put on the wall. He remained in such a position, described by the applicant as na rastyazhkakh (?? ?????????), for three days without sleep or water.

On 21 August 2011 he was taken to the Colony’s transfer unit (?????? ???????). The next day he was taken back to the duty unit where he was subjected, for the following two days, to the same ill-treatment as prior to 21 August 2011. The applicant was told that this was his punishment for violation of prison rules, disputing with the guards, and disobeying their orders.

On 26 August 2011 the applicant was placed in the Colony’s disciplinary unit (?????????????? ????????) for three days, allegedly for having asked the guards to return his documents. During his detention in the disciplinary unit the applicant was forced to follow military-type orders, like to take up his dressing, to run with his arms behind his head, to learn poems or songs, while his glasses were taken away. When he disobeyed, the applicant was forced to stand in the position na rastyazhkakh and was also beaten up.

On an unspecified date in September 2011 the applicant was transferred back to the SIZO, in which he is currently being detained.

The applicant alleges that his complaints to the domestic authorities about his ill-treatment have been blocked by the SIZO administration. The applicant claims that he risks facing retaliatory measures by the staff of the Colony, to which he will be transferred once his conviction becomes final.

The applicant states that the trial court and the SIZO administration have refused his repeated requests to allow him to meet with his partner.

During the applicant’s detention his property, including his dwelling and personal possessions, was partly damaged and partly stolen. He was allegedly not informed of the death of his parents. The applicant does not provide any details in this regard.

B.  Relevant domestic and international reports concerning the human rights situation in Ukraine

1.  Reports of the Parliamentary Commissioner for Human Rights (Ombudsman) concerning the human rights situation in Ukraine

The question of observance of the rights of detainees in Ukraine has been addressed in the annual reports published by the Ombudsman from 2000 onwards. A number of issues have been noted by the Ombudsman in that respect. They include overcrowding of SIZO cells, poor material conditions of detention, and lack of adequate medical assistance. In the 2011 report the Ombudsman observed that:

“... Detainees often died because of not being provided with timely medical assistance in SIZOs. For the past six years 1,040 persons died: in 2006 – 109 persons, in 2007 – 118 persons, in 2008 – 156 persons, in 2009 – 187 persons, in 2010 – 227 persons, in 2011 -243 persons.”

2.  Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

On 23 November 2011 the CPT published a report on its visit to Ukraine from 9 to 21 September 2009. The relevant parts of the report read as follows:

“...

2.  Torture and other forms of ill-treatment

77.  The vast majority of prisoners interviewed at the Kyiv SIZO, Colony No. 60 in Lozivske and Colony No. 85 in Gostomel made no allegations of deliberate physical ill-treatment by staff.

...

78.  In stark contrast to the above-mentioned establishments, at Colony No. 89 in Dnipropetrovsk, the delegation received numerous, consistent allegations of physical ill-treatment of inmates by staff. Some of the alleged ill-treatment was of such severity that it could be considered as amounting to torture. The ill-treatment was said to have taken place in offices of operational staff or in the high-security unit, containing the disciplinary section (DIZO/PKT), lifers’ cells and “tyurma” cells. It appeared that the ill-treatment was known to and condoned by senior prison officials. It is also noteworthy that some inmates with whom the delegation spoke stated that staff had threatened them with repercussions after the visit...

... As regards the high-security unit, it was alleged that prisoners were being made to stand spread-eagled facing the wall, and hit with truncheons, usually in the exercise yard...

81.  The prisoners’ situation at Colony No. 89 was exacerbated by the perceived impossibility to complain in a confidential manner to outside bodies without facing the risk of repercussions (see also paragraph 155).  Many prisoners indicated that their attempts to complain to outside bodies had led to retaliatory measures, including ill-treatment.

...

6.  Health care

a.  introduction

124.  The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners. Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources. During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.

...

c.  contact with the outside world

152.  Despite previous recommendations by the CPT, the situation as regards remand prisoners’ contact with the outside world remained unchanged. It was rare for such persons, including juveniles, to be authorised to receive visits and even to be authorised to send/receive letters, and no telephone calls were allowed. In some instances, the ban on visits continued even after the criminal investigation had been terminated. The delegation met prisoners who had not had any visits for up to 21 months.”

From 29 November to 6 December 2011 the CPT visited several police and pre-trial detention centres in the Kyiv and Kharkiv regions, including the Khrakiv SIZO. On 12 March 2012 the CPT published its preliminary observations concerning the visit, stating inter alia that the conditions of detention in the Kharkiv SIZO, excluding units for juveniles, were “simply appalling”. The CPT referred in particular to the issues of “severe overcrowding”, “very limited or no access to natural light”, and prisoners’ placement in special “holding cubicles”.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was tortured by police officers and prison guards, that the conditions of his detention have been inhuman and degrading, and that he has not been provided with medical assistance in detention.

The applicant complains that his detention has been unlawful and lengthy as the criminal charges against him were fabricated and the investigation was not in compliance with the law. He invokes Article 5 § 2 of the Convention.

The applicant alleges that his charges have been forged and that the criminal proceedings against him have been conducted in the unfair manner and for an excessively long period of time. He relies on Article 6 §§ 2, 3 (a), (b), (c) and (d) of the Convention.

Relying on Article 4 of Protocol No. 7, the applicant complains about the decision of the Kharkiv Regional Court of Appeal on 9 September 2010 ordering his retrial. The applicant argues that in accordance with Article 3 of Protocol No. 7 he should have been paid compensation for the judicial mistake due to which his conviction on 17 November 2009 was quashed.

The applicant finally complains about the hindrance by the SIZO staff of his correspondence with the Court and the domestic authorities and about the refusal of the authorities to allow him to meet with his partner. The applicant does not invoke any specific provision of the Convention in this respect.

QUESTIONS

1.  Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints about the conditions of his detention and his transport to and from court hearings in his criminal case?

2.  Has the applicant suffered from any serious health problems during detention? If so, has the applicant received adequate medical treatment in respect of such health problems, as required by Article 3 of the Convention?

3.  Has the applicant complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of his complaints of ill-treatment in the Oleksiivska Colony? If so, was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to those complaints?

4.  Was the length of the applicant’s detention before conviction in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

5.  Is the length of the criminal proceedings in the applicant’s case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

6.  Has there been an interference with the applicant’s right to respect for his private and/or family life, within the meaning of Article 8 § 1 of the Convention, having regard to his complaint about the refusal to allow meetings with his partner during detention? If so, has that interference been in accordance with the law and necessary within the meaning of Article 8 § 2?