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FIFTH SECTION

Application no 63782/11
Ilya Eduardovich ROMANOV
against Ukraine
lodged on 30 December 2005

STATEMENT OF FACTS

The applicant, Mr Ilya Eduardovich Romanov, is a Russian national who was born in 1967 and is currently serving a prison sentence in Ukraine.

A.  The circumstances of the case

On 7 December 2002 the applicant was arrested near Kakhovka, Kherson Region, Ukraine, on suspicion of illegal arms handling.

Upon his arrest, the applicant was questioned, without a lawyer, concerning his involvement with a criminal group of “revolutionary communists”, involvement in a terrorist act and other crimes.

Between 7 and 9 December 2002 the applicant was held in the local temporary detention centre (“the ITT”), in an unheated cell, with no place to sleep or sanitary facilities. As a result of those conditions, the applicant developed bronchitis. He was not provided with any treatment.

On 9 December 2002 the applicant’s glasses were seized from him, despite the fact that he suffered from severe myopia, astigmatism and emerging cataracts.

On 11 December 2002 the applicant was officially remanded in custody pending investigation against him and transferred to the Kherson pre-trial detention centre (“the Kherson SIZO”), which was overcrowded and had highly inadequate sanitary and medical facilities.

On 19 December 2002 the applicant was transported to the Mykolayiv no. 20 SIZO (“the Mykolayiv SIZO”), where several other members of the “revolutionary communist” group had been detained pending the outcome of investigations, and placed in the prison hospital.

On 21 December 2002 the applicant was provided with a legal-aid lawyer, S., who allegedly tried to convince him to cooperate with the investigating authorities. According to the applicant, S. gave the authorities notes which the applicant had given to him in confidence, and those notes were subsequently used in the body of evidence against him.

On 21 and 22 December 2002 the applicant made self-incriminating statements in the presence of his lawyer. However, he refused to testify against his associates.

In February 2003 the applicant’s family hired a lawyer, Ch., to represent his interests.

On 19 February 2003 Ch. obtained a pair of glasses for the applicant.

On 3 March 2003 the applicant was transported to Odessa and detained in the Odessa no. 21 SIZO (“the Odessa SIZO”). This detention facility was also overcrowded and had very poor sanitary facilities. In particular, the detainees had no access to washing facilities for two to three weeks at a time and hot water was not always available in them. For certain periods of time the applicant was held in cells which were flooded, and in which he was up to his ankles in water. The medical facilities in the SIZO had no medical supplies or equipment and detainees were even required to provide paper and pens for keeping records.

On 27 May 2003 the investigation was completed and the applicant, along with ten other individuals also charged with affiliation with a revolutionary communist group, was committed to stand trial before the Odessa Regional Court of Appeal, acting as a first-instance court.

On various dates in 2003 the applicant complained to the prosecutor’s office that he had been ill-treated by the investigative authorities in Kakhovka and Kherson in order to extract confessional statements. In particular, in Kakhovka he had been subjected to various threats and had his bare feet beaten with plastic water bottles. In Kherson he was placed for some time in the cells occupied by convicted prisoners, who beat detainees under investigation upon the orders of the administration to help obtain confessions from them. At one point the applicant’s cellmates attempted to rape him.

On 25 July 2003 the Kherson Regional Prosecutor’s Office refused to institute criminal proceedings into the applicant’s allegations of ill-treatment during his stay in the Kherson SIZO. They noted, in particular, that there were no medical records concerning the applicant’s injuries upon arrival or during his stay; no health-related complaints from him had been received (save for those concerning bronchitis), and that, according to his cellmates, they had not been aware of any injuries or heard any complaints from the applicant in that connection.

On 28 July 2003 the Kakhovka Inter-District Prosecutor’s Office refused to institute criminal proceedings into the applicant’s allegations of having been ill-treated in Kakhovka for lack of evidence. It was noted, in particular, that the only complaints the applicant had made to the medical staff of the Kakhovka ITT had been about his cough and bronchial pain. Upon the applicant’s arrival at the Kherson SIZO no injuries had been recorded. Subsequently on 11 November 2004 and 18 January 2005 respectively the Kakhovka District Court and the Kherson Regional Court of Appeal upheld the decision of 28 July 2003.

On 25 and 26 November 2003 the applicant requested the court to allow A. R., a Russian lawyer in whom he had special confidence, to represent him in the criminal proceedings. His request was rejected, purportedly as A. R. had not shown that he was licensed to practise in Ukraine.

During the trial the applicant acknowledged that he shared communist beliefs with the other co-defendants, whom he considered political comrades. He further acknowledged that he had distributed two issues of the “Sovet Rabochikh Deputatov” newspaper, that he had taken them from the flat of A. Y., one of the co-defendants, in Mykolayiv and given them to a pensioner and a housewife, who were interested in their content. However, he considered that these actions were not criminal, in particular because the newspaper itself was legally published in Russia and was not banned in Ukraine. Otherwise, the applicant denied any involvement in the criminal activities he was charged with and retracted his earlier statements as having been made under duress and in breach of guarantees protecting against self-incrimination. He further alleged that he and his co-defendants had been ill-treated by the investigative authorities in order to extract confessions, and that B., one of his co-defendants, who had died in detention in the course of the investigation, had been tortured to death.

The court ordered the Prosecutor’s Office to investigate the applicant’s and his co-defendants’ allegations. Following the investigation, the Prosecutor’s Office reported that there was no case to answer. The applicant’s co-defendant B. had died of cancer.

On 19 July 2004 the applicant was convicted of criminal association membership, participation in a terrorist act (detonating an explosive in a rubbish bin near the State Security Service headquarters in Kyiv), dissemination of materials propagating violent revolt against the constitutional order, attempting to undermine the territorial integrity of Ukraine, and illegal handling of firearms and explosives. He was sentenced to ten years’ imprisonment.

The applicant appealed in cassation. He alleged that his actions with respect to the distribution of the newspaper should not have led to his criminal conviction and prison sentence and that his conviction in respect of the other crimes had been based on inconsistent, partly falsified and insufficient evidence, while his and his co-defendants’ confessional statements should have been excluded as evidence on the ground that they had been obtained under duress and in breach of guarantees protecting against self-incrimination. The applicant additionally complained of a breach of his right to defence and insufficient time to study the voluminous case file.

On 26 July 2005 the Supreme Court of Ukraine quashed the applicant’s conviction for criminal association membership as insufficiently substantiated and otherwise upheld the applicant’s conviction and sentence. The Court noted that, according to the testimonies of various witnesses, including some of the applicant’s co-defendants, given not only during the pre-trial investigation but also during the trial, the applicant had been intentionally and systematically involved in the distribution of propaganda, whose content unequivocally called for armed and violent opposition to the existing political regime and advocated the creation of an independent Black Sea Soviet Socialist Republic on part of the Ukrainian territory. Likewise, there was sufficient evidence that the applicant had possessed illegal arms, including statements by lay witnesses present during the seizure of such objects from him. As regards the applicant’s involvement in a terrorist act, there was no call to exclude his pre-trial confessions, made in the presence of his lawyer, as evidence. In addition, there was other indirect evidence, including statements by his co-defendants in court, that the applicant had shared with them information concerning the act in issue. The Supreme Court further dismissed the applicant’s allegations of ill-treatment for lack of evidence and noted that he had had sufficient time to prepare his defence, as evidenced, in particular, by numerous references to various pages of the case file in his extensive cassation appeal. Finally, the court found no breach of the applicant’s right to legal representation.

In November 2005 the applicant was transferred to the Yenakiyeve Correctional Colony in the Donetsk Region to serve his sentence.

Upon his arrival at the Colony, the applicant was required to work without having been medically examined. As he refused to do so, referring to his medical conditions, including a spinal injury suffered in the 1980s, he was subjected to disciplinary confinement on several occasions. No warm clothes were provided to him, although the temperature was very cold. The cells were unclean and infested with rats.

Eventually, upon numerous complaints by his family and supporting public activists, on 30 January 2006 the applicant was placed in a prison hospital, where he stayed until 16 February 2006 and received treatment for the after-effects of his spinal injury. He was also acknowledged to be suffering from severe myopia, astigmatism and cataracts and recognised as having a “third-degree” (mildest) invalidity. Following these medical interventions, five of the six disciplinary sanctions imposed on the applicant were lifted as having been unsubstantiated.

In summer 2006 the applicant was transferred to the Ivanychi Correctional Colony in the Rivne Region, where a less strict regime was in place.

According to the applicant, the transfer took several months, during which he suffered inhuman and degrading treatment. In particular, the train compartments were overcrowded and unventilated. No food, drink or access to sanitary facilities was provided for lengthy periods of time. In between trains the applicant was held in the transit cells of pre-trial detention facilities in various towns, where he was often deprived of basic necessities, such as bed linen. The cells were overcrowded, poorly lit and ventilated, and the prison staff treated the prisoners without respect.

In October 2006 the applicant, his family and supporting public activists started requesting his transfer to a different penitentiary, complaining that the Ivanychi Colony was unsuitable in the light of the poor state of his health. In particular, the region had a high level of radiation, which was very dangerous for the applicant’s injured spine. In addition, the colony was very far from the Russian border and could not be accessed directly by public transport, which made it complicated for the applicant’s family, including his wife and three underage children, to pay him visits. In addition, on unidentified dates the prison authorities interfered with the applicant’s correspondence.

In December 2006, following numerous complaints by the applicant and his supporters, he was transferred to a colony in Lugansk Region, which was close to the Russian border.

In February 2009 the applicant’s lawyer from Moscow, Russia, requested the Odessa Regional Court of Appeal to send him a number of documents from the applicant’s case file by post.

On 25 June 2009 the court denied this request, having noted, in particular, that it had no facilities to prepare and send the copies and that the lawyer could study the case file on the court’s premises and make extracts, if necessary.

COMPLAINTS

On 30 December 2005 the applicant lodged the following complaints:

-  under Article 3 of the Convention that he had been tortured in order to extract confessional statements and that the conditions of his pre-trial detention in the ITT and the Kherson and Odessa SIZOs, including medical support and supervision, had been inadequate;

-  under Article 5 of the Convention that his arrest and detention before trial had been unlawful;

-  under Article 6 §§ 1 and 3 of the Convention that his criminal trial had been excessively lengthy and unfair, that the courts had been neither independent nor impartial, and that his right to legal representation had been breached; and

-  under Article 6 § 2 of the Convention that the authorities had considered him guilty long before his conviction had been pronounced.

On 24 January 2006 the applicant added to his application and complained about the following matters:

-  under Article 2 of the Convention that his co-defendant B. had been tortured to death by the investigative authorities and that no effective investigation had ensued, and that the applicant had constantly feared for his own life during the criminal proceedings on account of the cumulative effect of the conditions of his detention and the conduct of the investigative authorities;

-  under Article 6 of the Convention that he had not been able to effectively participate in the trial and had had insufficient time and facilities to prepare his defence, regard being had to the cumulative effect of the conditions of his detention (including sanitary arrangements and medical assistance) and transport to the court premises, restricted access to the case file and difficulty in appointing a lawyer;

-  under Article 8 of the Convention that he had been unfairly restricted in his right to correspond with the outside world and receive family visits while under investigation;

-  under Articles 5, 9, 10 and 14 of the Convention that his arrest and conviction, which had been based on the fact that he had communist beliefs, had been neither lawful nor necessary in a democratic society; and

-  under Article 13 that he had no effective remedies for his complaints under Articles 3, 5 and 6 of the Convention.

On 29 May 2006 the applicant further added to his application, expanding on his original complaints and lodging additional complaints under Article 6 of the Convention that the courts had incorrectly assessed the evidence and incorrectly applied the law in the criminal proceedings against him; that his right to question witnesses had been breached; and that there had been no translation from the Ukrainian language available to him during the hearing in the Supreme Court.

On 9 March 2007 the applicant additionally lodged the following complaints:

-  under Article 3 about the conditions of detention in the Yenakiyeve Colony and the conditions of transport from Yenakiyeve to Ivanychi from July to September 2006 and

-  under Articles 3 and 8 of the Convention that the prison authorities had interfered with his correspondence.

On 8 September 2009 the applicant made the final addition to his application, complaining that the Odessa Regional Court of Appeal had interfered with his right of individual petition by refusing to send his lawyer copies of various documents from his case file.

QUESTIONS TO THE PARTIES

1.  Has the applicant been subjected to treatment in breach of Article 3 of the Convention? In particular, were the conditions of the applicant’s transport from the Yenakiyeve to Ivanychi Colony and the conditions of his detention in the Odessa SIZO, including physical, sanitary and health-care arrangements, compatible with Article 3 of the Convention standards?

2.  Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by Article 6 § 3 (b) and (c) of this provision? In particular:

(a)  Were the applicant’s rights to participate in the trial effectively, defend himself in person and have adequate time and facilities to prepare his defence within the meaning of Article 6 § 3 (b) observed, regard being had to his complaints about the adverse effect of the conditions of his detention and transport to court hearings on his ability to concentrate and his submissions concerning limited time to study the case file?

(b)  Was the applicant’s right to legal representation within the meaning of Article 6 § 3 (c) of the Convention observed, regard being had to the fact that he had no lawyer during the initial stage of the investigation? The Government are invited to comment in particular on whether the applicant exhausted domestic remedies for that complaint.

3.  Has there been an interference with the applicant’s rights guaranteed by Article 10 of the Convention on account of his conviction for spreading communist propaganda? If so, was the law prescribing such interference foreseeable and was this interference necessary within the meaning of Article 10 § 2?

4.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention about the conditions of his transport and detention, as required by Article 13 of the Convention?