CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 janvier 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s4D43C76D { margin-top:6pt; margin-left:59.69pt; margin-bottom:6pt; text-align:justify; padding-left:4.66pt; font-family:Arial; font-size:10pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s3EEACD50 { width:194.93pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 23893/03 by Aleksandr Valeryevich KAVERZIN against Ukraine The European Court of Human Rights (Fifth Section), sitting on 12   January 2010 as a Chamber composed of:   Peer Lorenzen, President,   Renate Jaeger,   Karel Jungwiert,   Rait Maruste,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges, and Stephen Phillips, Deputy Section Registrar , Having regard to the above application lodged on 1 July 2003, Having deliberated, decides as follows: THE FACTS The applicant, Mr Aleksandr Valeryevich Kaverzin, is a Ukrainian national who was born in 1973. He is currently serving a prison sentence in Dnipropetrovsk Colony No. 89. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s arrest and detention On 12   January   2001 the applicant was arrested on suspicion of several counts of aggravated murder and robbery. In the course of his arrest the applicant was injured by the police officers. The next day he was examined by a doctor, who noted a number of bruises and lesions on the applicant’s face, the back of his head, and his chest. The applicant alleges that during his stay in police custody he was tortured by unspecified police officers, because of which he confessed of having committed some of the crimes of which he was suspected. On 19   January   2001 the applicant was examined by another doctor, who noted that he had ocular haemorrhage, haematomas and abrasions on the left part of his chest, arms and legs. The applicant remained in police custody until 23   January   2001. On that day he was placed in Kharkiv Temporary Investigative Isolation Unit (“SIZO”) No. 27. Upon his arrival in Kharkiv SIZO No. 27, he was examined by a doctor, who noted several bruises on the applicant’s left shoulder, chest, arm and knee. The applicant did not receive any treatment for his injuries in Kharkiv SIZO No. 27. On an unspecified date the applicant complained of ill-treatment by the police. By a decision of 26   January   2001 the prosecutors rejected the applicant’s complaints. The relevant parts of the prosecutors’ decision read as follows: “... On 15 January 2001 Kaverzin A. V. was questioned at the regional prosecutor’s office in the course of consideration of the question of ... his placement into the Kharkiv [SIZO] No. 27. During his interrogation with the participation of [his] defence lawyer Kaverzin A. V. explained that the injuries he had sustained in the course of his arrest, that he did not have any complaints against the police, that he had made his first statements freely, without psychological or physical pressure from the part of the police officers. The officers of [the police] ... who had taken part in the arrest of Kaverzin A. V. [were questioned and] explained that they had been aware that Kaverzin A. V. used firearms during his attempted arrest by the police in the Khmelnytsk Region, as a result of which two officers of the police had died. Because of that [fact] they had been particularly cautious and when Kaverzin A. V. had attempted to resist ... there had been measures of physical influence and special means [of restraint], namely handcuffs applied to him. According to the records of the forensic examination ... dated 19 January 2001 [the following injuries on the body and face of Kaverzin A. V.] had been discovered: an ocular haemorrhage, haematoma on the left side of the chest, numerous abrasions on lower limbs that had been caused by blunt solid objects; abrasions and scratches on wrists that had been caused by blunt solid objects, those could have been the handcuffs; numerous indurations on various parts of the skin with small wounds caused by insects ... the injuries could have been caused to Kaverzin A. V. in the circumstances as described by the police officers and Kaverzin A. V. himself. Therefore there are no elements of a crime in the actions of the police officers. On the basis of the foregoing, pursuant to paragraph 2 of Article 6 of [the Code of Criminal Procedure] of Ukraine [the prosecutor] Decided: 1.     To refuse opening of a criminal case against [the police] officers who took part in the arrest of ... Kaverzin A. V. on the ground there was no elements of a crime in their actions...” The applicant did not challenge the decision of 26   January   2001 before the courts. On 25   February   2001 the applicant was transferred to Khmelnytsk SIZO No. 29. During his stay in Khmelnytsk SIZO No. 29 the applicant was examined by doctors in September and October 2001 and August, September and November   2002 and received specialist ophthalmological treatment. On 23   September   2002 a medical commission established that the applicant had become completely blind and, accordingly, suffered from the highest officially recognised degree of disability. The doctors concluded that the applicant was in need of outside assistance in his everyday life. The applicant alleges that his disability was the consequence of his ill-treatment by the police after his arrest in January 2001. On 12   August 2003 the applicant was transferred to Dnipropetrovsk Colony No. 89 to serve his sentence. In September   2003 and January 2004 the applicant was examined by doctors in view of his disability. The applicant underwent medical treatment in the colony, the details of which he has not specified. According to him, the medical treatment he received was insufficient. In 2004 the prison authorities did not allow the applicant’s mother to supply him with medicines which he allegedly needed. The authorities explained that the applicant would be given the necessary medicines if a doctor so decided. The applicant alleges that despite his blindness he is handcuffed when leaving his cell, including during daily walks, and is followed by several prison officers with a dog. In the course of a daily walk in 2005, one of the dogs bit the applicant. 2.     The criminal investigations against the applicant and his trial The criminal investigations in the applicant’s case were completed in November   2001. Subsequently, the criminal case was referred to the Khmelnytsk Court of Appeal for trial. In the course of the investigations and trial, the applicant was assisted by a lawyer appointed for him by the authorities. That lawyer took part in the first stages of the proceedings before the first-instance court and was later replaced by another lawyer for unknown reasons. The new lawyer continued defending the applicant until those proceedings were completed. In the course of the trial the applicant contested the charges against him and alleged that his confession to some of the crimes of which he had been accused had been obtained under physical and psychological pressure from the police. On 13   November   2002 the court found the applicant guilty of thirteen counts of aggravated murder, infliction of grievous bodily injuries, illegal possession of firearms, banditry, and robbery. In particular, the applicant was held to be responsible for the murder of seven persons, including three police officers who had attempted to stop him from committing crimes. He   was found to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property. The court mainly based its judgment on the testimonies of about thirty witnesses and victims of the crimes, statements made by the applicant at the trial, and on the conclusions of several forensic, ballistic and other expert examinations. The findings of the court concerning one of the counts of murder were partly based on the confessions obtained from the applicant during his stay in police custody. In the same judgment the court, relying on the decision of the prosecutors of 26   January   2001, dismissed the applicant’s complaints of ill-treatment by the police and found that there was no evidence that his confession had been obtained under duress. On 17   December   2002 the applicant lodged an appeal in cassation, contesting the first-instance court’s factual findings and legal conclusions. He further argued that, in determining his sentence, the court had not taken into account his poor state of health. The applicant also maintained the allegations of his ill-treatment by the police. On 13   May   2003 the Supreme Court partly varied the judgment of 13   November   2002, while confirming the first-instance court’s findings concerning the applicant’s guilt and upholding his sentence. The Supreme Court further rejected the applicant’s allegations of ill-treatment on the same grounds as the first-instance court. B.     Relevant domestic law 1.     Constitution of Ukraine of 1996 The relevant provisions of the Constitution read as follows: Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity...” 2.     Code of Criminal Procedure of 1960 Article 236-1 of the Code provides: “Within seven days of notification, a decision of the body of inquiry, investigator or a prosecutor not to institute criminal proceedings can be appealed against by an interested party or its representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...” Article 236-2 of the Code, in so far as relevant, provides: “An appeal against a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged. The judge shall request the materials, on the basis of which the decision not to institute criminal proceedings was taken, examines them, and informs the prosecutor and the appellant of the date on which the hearing of the appeal is scheduled. If   necessary, the judge may hear the appellant in person... Having examined the case, the judge ... may take one of the following resolutions: 1)     setting aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries; 2)     dismissing the complaint. The judge’s resolution may be appealed against within seven days of its delivery to a court of appeal...” 3.     Code on the Execution of Sentences of 11   July   2003 Article   18 of the Code provides that male detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security. They are placed in cells for two persons. Under Article   140, they are allowed to have a one-hour daily walk. 4.     Internal Regulations of the Penitentiary Institutions, approved by the State Department for the Execution of Sentences on 25   December   2003 (Order No. 275) The rules governing the detention of persons sentenced to life imprisonment subject them to special restrictions as regards material conditions, activities and possibilities for human contact, which include permanent separation from the rest of the prison population, limited visit entitlements, prohibition of communication with other prisoners, and being escorted by three officers with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell (sections 23-25 of the Regulations). Pursuant to section 94, persons sentenced to life imprisonment receive medical aid, as a rule, in their cells in the presence of at least three guards. Such persons are to be transferred to a medical institution of the State Department for the Execution of Sentences, or to a regular medical centre, if they need urgent medical aid. Annex 9 to the Regulations states that persons detained in penitentiary institutions are not allowed to keep in their possession any medicines or medical items. C.     Relevant Council of Europe documents 1.     Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11   January 2006 (Appendix) The relevant extracts from the Appendix to the Recommendation, adopted at the 952nd meeting of the Committee of Ministers, read as follows: “... Instruments of restraint 68.1     The use of chains and irons shall be prohibited. 68.2     Handcuffs, restraint jackets and other body restraints shall not be used except: if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or by order of the director, if other methods of control fail, in order to protect a prisoner from self ‑ injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority. 68.3     Instruments of restraint shall not be applied for any longer time than is strictly necessary. 68.4     The manner of use of instruments of restraint shall be specified in national law...” 2.     2005 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) The visit by the CPT delegation to Ukraine took place from 9 to 21   October 2005 , in the course of which the delegation inspected, inter alia , Temnivka Colony No. 100 for men, including the unit for men sentenced to life imprisonment, and the temporary unit for women sentenced to life imprisonment at Kharkiv Colony No. 54. The CPT made the following findings concerning certain aspects of the conditions of detention of persons sentenced to life imprisonment (paragraph 113 of the report): “... [W]hereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men. More generally, the attitude towards this category of prisoners at Colony No. 100 was extremely security-oriented, with staff constantly stressing their ‘dangerousness’. In addition, the delegation noticed a wire cage in the staff office, in which the prisoners said they were systematically locked when interviewed by members of staff...” The CPT called upon the Ukrainian authorities to abolish “the practice of systematically handcuffing men whenever they are taken out of their cell ... with immediate effect”. COMPLAINTS The applicant complains of a violation of Article   3 of the Convention. In   particular, he alleges that he was tortured by the police during his stay in police custody and that his allegations of torture had not been duly examined, that the authorities did not provide him with adequate medical treatment, as a result of which he became disabled, and that the conditions of his detention in the colony are debasing, seeing that he is handcuffed at all times when he leaves his cell. The applicant also maintains that the sentence imposed on him was humiliating. The applicant further complains that the criminal proceedings against him were unfair and unreasonably long. He argues that the investigators and judges dealing with his case were biased and that they based their decisions on an incorrect assessment of the facts and interpretation of the law. The   applicant also alleges that his right of defence was violated and that he was not provided with an opportunity to obtain the attendance and examination of witnesses on his behalf, while providing no further specification or clarification as to those allegations. He invokes Articles   5, 6 and 13 of the Convention. THE LAW 1.     The applicant complained about his alleged ill-treatment by the police, lack of effective investigation into his allegations of ill-treatment by the police, inadequacy of medical assistance and conditions of his detention. He invoked Article   3 of the Convention, which reads: “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 these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government. 2.     The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder 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 Decides to adjourn the examination of the applicant’s complaints under Article   3 of the Convention about his alleged ill-treatment by the police, lack of effective investigation into his allegations of ill-treatment by the police, inadequacy of medical assistance and conditions of his detention; Declares the remainder of the application inadmissible. Stephen Phillips   Peer Lorenzen Deputy Registrar   President