CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 février 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s4CADCC17 { margin-top:30pt; margin-bottom:18pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB68A8BE2 { margin-top:0pt; margin-bottom:0pt; text-indent:9pt; text-align:justify } .s190344B1 { margin-top:0pt; margin-bottom:36pt; text-indent:9pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } FIFTH SECTION Application no 63727/11 Andrey Olegovich YAKOVENKO against Ukraine lodged on 15 December 2005 STATEMENT OF FACTS   The applicant, Mr Andrey Olegovich Yakovenko, is a Ukrainian national who was born in 1969 and has his permanent address in Odessa. The circumstances of the case In summer 2002 the applicant, a communist party member and the president of the Odessa Regional Komsomol (young communists) organisation, unsuccessfully ran for the Odessa Regional Council. According to him, following the election campaign, the State security services organised his secret surveillance. On 15 December 2002 the applicant was arrested in Odessa on suspicion of affiliation with a “revolutionary communist” group implicated in terrorist activity and various violent crimes. On 16 December 2002 the applicant was taken to Mykolayiv for questioning, where a number of his communist acquaintances had been arrested and detained several days before. According to the applicant, the conditions of his transportation were unbearable. In particular, a black hat was put over his head, covering his eyes and making breathing difficult; he was handcuffed and made to lie on the floor of the van. During the journey, the applicant, who suffered from hypertension, allegedly had a heart attack. In spite of this, upon his arrival in Mykolayiv, the applicant was immediately questioned without being given the opportunity to contact a lawyer. On the same date the applicant was placed in the Mykolayiv temporary detention centre (ITT). According to him, the ITT cell was overcrowded and dark, the toilet was not separated from the living quarters, and no access to bathing facilities was provided. On 17 December 2002 the applicant allegedly had a second heart attack and an ambulance was called to assist him. On 25 December 2002 the applicant was officially remanded in custody pending investigation of his involvement in criminal activity. On 3 March 2003 the applicant was transported to Odessa pre-trial detention centre no. 21 (“the Odessa SIZO”) and placed in a cell with criminal recidivists, which was contrary to the applicable law, as the applicant had never been convicted. Among the applicant’s inmates there were persons suffering from HIV and tuberculosis. The applicant’s cell, which measured four by two-and-a-half metres, was occupied by four to five inmates at various times. Notwithstanding the applicant’s complaints, it was only on 13 November 2003, in connection with the investigation of the circumstances of the death of B., one of the applicant’s co-defendants, that he was transferred to a different cell. Access to bathing facilities was seldom provided. The SIZO had no medical facilities to ensure prompt diagnostics and supervision of serious conditions, like his heart disease, which required regular monitoring. The applicant’s family sent him medicines for his heart condition; however, on some occasions they were unreasonably withheld from him, causing him stress and physical suffering. On numerous occasions the investigative authorities attempted to convince the applicant to make self-incriminating statements by making various threats and inappropriate remarks concerning the applicant’s family life. Notwithstanding that pressure, the applicant denied being guilty of any criminal activity, although he admitted that he was actively involved in spreading communist propaganda and publically criticising the existing Government. On 21 May 2003, after most of the investigative activities had been completed, the applicant obtained a legal-aid lawyer. On 27 May 2003 the investigation was finished and the applicant, along with ten other members of the same group, was committed to stand trial before the Odessa Regional Court of Appeal acting as a first-instance court. The applicant was refused permission to appoint his father as his defence representative on the ground that the latter could be questioned as a witness in the case. In November 2003 B., one of the applicant’s co-defendants, died in detention. Pursuant the applicant’s and his co-defendants’ allegations that he had died as a result of torture and that the others had also been ill-treated during the pre-trial investigation stage, the court ordered the Prosecutor’s Office to investigate the matter. Following the investigation, the Prosecutor’s Office reported that B. had died of cancer and there had been no evidence of ill-treatment of the other co-defendants. On 24 and 25 November 2003 the applicant requested to be provided with a different legal-aid lawyer, alleging that his lawyer had not been diligent and was not supportive of the line of defence preferred by the applicant. On 26 November 2003 the applicant’s request was allowed. On 22 December 2003 the applicant requested adjournment of a hearing on the ground that his heart problems had worsened, but his request was refused. On 9 January 2004 the applicant’s request for a medical consultation in a cardiology clinic was rejected. On 10 January 2004 the applicant complained in court about the conditions of his transport to the hearings. In particular, he alleged that the officers in charge made the handcuffed defendants run up to the sixth floor, beating those of them who stumbled and fell. On 3 February 2004 the applicant again complained to the court that his health was deteriorating and that the conditions of his detention were incompatible with his medical conditions. In particular, he noted that he was not afforded two-hour outdoor walks as recommended by the doctors. On 12 February 2004 the applicant requested the court to inspect the conditions of detention in the Odessa SIZO on account of B.’s death and the deterioration of the health of other co-defendants in the case. Pursuant this request, in March 2004 the court ordered medical assessments of all defendants, following which they were certified fit for detention and trial. On 14 April 2004 the applicant further complained to the court that on the days of the hearings, the defendants were taken out of their cells at 6   a.m. and were held in cold transitory cells until 2 p.m. without any food. In April 2004 the applicant allegedly had a third heart attack during his transportation to the court premises and was allegedly not attended to by a medical professional until two hours later, despite his and his co-defendants’ cries for help. On 19 July 2004 the Odessa Regional Court of Appeal convicted the applicant of propagating a violent revolt against the Constitutional order and attempting to undermine the territorial integrity of Ukraine; organising and running a criminal association; participating in a terrorist act (detonation of an explosive in a rubbish bin near the State Security Service of Ukraine headquarters in Kyiv); smuggling goods across the Russian border; unlawful handling of firearms and explosives; several armed robberies and engagement of a minor in criminal activity. The court further dismissed the applicant’s ill-treatment allegations as unsubstantiated and sentenced him to fourteen years’ imprisonment. The applicant appealed in cassation. He alleged, in particular, that his conviction had been based on the testimonies of his co-defendants given under torture. He acknowledged that he had published and distributed statements advocating the overthrow of the current political regime and had a group of supporters who facilitated various oppositional activities. However, he maintained that the group of people in issue could not be considered a criminal association and their criminal prosecution was unwarranted. He further denied the robbery charges as unsubstantiated and based primarily on self-incriminating statements obtained from his co-defendants under torture and without legal representation. He also complained of a breach of his right to defence, in particular, on account of the court’s refusal to admit his father as his defence representative. Between 17 June and 2 August 2005 the applicant was detained in the Kyiv pre-trial detention centre (Kyiv SIZO). The applicant’s cell, which contained eleven sleeping places, was occupied by twenty-two inmates. The window was covered with metal shutters, barely letting in air and light. The temperature often reached forty degrees and the air, mattresses and pillows were very damp. On 26 July 2005 the Supreme Court of Ukraine re-qualified the applicant’s conviction for smuggling as aiding and abetting smuggling and otherwise upheld the first-instance court’s decision. It noted, in particular, that the evidence of the applicant’s guilt included testimonies by his co ‑ defendants and victims of his crimes given during trial and there was no evidence that any testimonies obtained during pre-trial investigation had been extracted by ill-treatment. The conviction for distribution of propaganda and attempt to undermine the territorial integrity of Ukraine was not reviewed, as the applicant lodged no appeal against it. Between 2 and 7 November 2005 the applicant was in transit on his way to the Sokyriany Correctional Colony, where he was sent to serve his sentence. According to the applicant, the conditions of his transport were unbearable. In particular, the trains had compartments designed for four to six passengers, which were occupied by eleven or more detainees and their belongings. The guards escorted the detainees to the bathroom only once every four hours and there was no possibility to go otherwise. In Vinnytsya transitional prison there was only cold water in the shower. The changing room had no window pane and was very cold. At night the cell was infested with mice. The bedding was taken away at 10 a.m., while the next stage of the journey did not commence until 3 a.m. the next day. Between 7 and 15 November 2005 the applicant was held in the quarantine quarters of the Sokyriany Correctional Colony. According to him, the cell had almost no heating and was very damp and cold, while all his civilian warm clothes had been seized. He was provided with a prison uniform in a very small size and was practically unable to fit into it. In spite of his immediate complaints, the problem was not resolved until the end of December 2005. On 8 November 2005 the applicant underwent a medical examination and was found to be suffering from hypertension. The applicant further alleged that in winter 2006 his mother had not received any of the three letters dispatched by him to her address and that communist newspapers to which he subscribed had not been delivered to him during that period. On an unspecified date the applicant was allegedly marked as liable to escape and subjected to special supervision thereafter (for example, the administration placed his bed by the entrance door to the cell in order to be able to supervise him more effectively). On 18 July 2006 the applicant was transferred to Torez no.   28 correctional colony in Donetsk Region, some 800 kilometres from his home town. According to the applicant, this transfer made it very burdensome for his aged parents to pay him visits. The conditions of transport from the Sokyriany to the Torez colony in July and August 2006 were similar to those in November 2005. Moreover, it was extremely hot outside (above 30 degrees Celsius) and there was no ventilation in the overcrowded compartments. In September 2006 the applicant arrived at the Torez Colony, where it was discovered that his medical documents were not in his file. As a result, he had to undergo a new comprehensive medical examination, which delayed his ability to receive proper monitoring and treatment for his heart condition. In February 2009 the applicant’s lawyer, based in 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. COMPLAINTS On 15 December 2005 the applicant lodged the following complaints: -     under Article 3 of the Convention about his surveillance by the security services in connection with his political activity in 2002, about the conditions of his transport to Mykolayiv in December 2002, and the conditions of his detention in the Mykolayiv ITT and the Odessa and Kyiv SIZOs; -     under Article 6 of the Convention that the trial against him had been unfair: the courts had been neither independent nor impartial, unspecified witnesses had not been summoned, and his right to defence had been breached, in particular, as his father had not been allowed to act as his defence representative; -     under Article 8 of the Convention that the investigative authorities had made inappropriate remarks concerning the applicant’s wife and family life in the course of the investigation; On 30 December 2005 the applicant lodged the following additional complaints: -     under Article 3 of the Convention that the investigative authorities had unlawfully pressured him to obtain confessional statements, and that the conditions of his detention in the Sokyriany Colony had been unbearable; -     under Article 5 of the Convention that his arrest and pre-trial detention had been unlawful; -     under Article 6   §§   1 and 3 of the Convention 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 further 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, 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 been unable 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, 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 26 February 2006 the applicant added to his application, lodging a new complaint under Article 34 of the Convention that the Odessa Regional Court of Appeal had refused to provide him with copies of various documents from his case file. On 3 May 2006 the applicant added to his application by complaining, without referring to any Article of the Convention or its Protocols, that he had been subjected to political pressure, since some of his correspondence had been delayed and newspapers to which he subscribed had not been delivered in winter 2006. On 29 May 2006 the applicant further added to his application, expanding on his original complaints and lodging the following additional complaints: -     under Article 3 and Article 6 §§   1, 2 and 3 (b and d) that he had been arbitrarily labelled as “liable to escape” in the prison file and treated accordingly; and -     under Article 6 of the Convention that the courts had incorrectly assessed the evidence and applied the law in criminal proceedings against him and there had been no translation from Ukrainian available to him during the hearing in the Supreme Court. On 13 September 2006 the applicant additionally complained that the Torez Colony was located very far from where his parents lived, making it very burdensome for them to visit him; that the conditions of his transport to this colony had amounted to torture and that the Sokyriany prison authorities had deprived him of proper medical supervision upon his arrival at the Torez Colony on account of the disappearance of his medical documentation. The applicant referred to Article 1 of Protocol No.   12 in this regard. On 9 March 2007 the applicant further added to his application by providing additional specifications concerning his previous complaints and additionally complaining under Article 3 of the Convention about the conditions of his transport to the Sokyriany and Torez Colonies. 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.     Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention? In particular, were the conditions of his transport from Sokyriany to Torez Colony and the conditions of his detention in the Odessa and Kyiv SIZOs in 2003-2005 and in Sokyriany Colony, 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 before and after the trial? (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 and that subsequently he was legally represented only during some stages of the process?   3.     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 to Torez Colony and the conditions of detention in the Odessa and Kyiv SIZOs and the Sokyriany Colony, as required by Article 13 of the Convention?