CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 août 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s575D68AE { margin-top:18pt; margin-bottom:18pt; text-indent:14.2pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FIFTH SECTION Application no. 1574/06 Vyacheslav Vladimirovich SAVCHENKO against Ukraine lodged on 23 December 2005 STATEMENT OF FACTS The applicant, Mr Vyacheslav Vladimirovich Savchenko, is a Ukrainian national who was born in 1973 and is currently detained at a pre-trial detention centre (“the SIZO”) in Kherson. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The criminal proceedings against the applicant According to the applicant, since 1997 he and his family members were persecuted by the authorities, which included arbitrary and unlawful arrests and initiation of criminal proceedings, tortures and inhuman conditions of detention. Between 1997 and 2001 the authorities allegedly unlawfully collected the applicant’s and his family members’ personal information by intercepting their correspondence and telephone conversations. According to the documents submitted by the applicant, the criminal proceedings instituted in 1997 concerned charges of infliction of bodily injuries which the prosecutors claimed the applicant had committed in the same year. Subsequently, the prosecutors accused the applicant that while at liberty in 1997-2001 he, together with several other people, committed a number of other crimes, including a murder on 17 September 2001. In September 2001 the police allegedly unlawfully searched the premises belonging to the applicant and his family members and seized various objects belonging to them, including family pictures. In 2002 the criminal investigation was completed and the case was referred to the Kherson Court of Appeal, sitting as a court of first instance. On 7 December 2004, 20 April 2007 and 29 December 2009 the Kherson Court issued verdicts convicting the applicant on charges of several counts of theft, robbery, infliction of bodily injuries and murder and sentencing him to life imprisonment. Those verdicts were quashed by the Supreme Court (on 11 May 2006, 10 October 2007 and 20 September 2011, respectively) with the case having been remitted for fresh examination, which, according to the most recent information from the applicant, has not been completed so far. According to the applicant, in the course of the investigation and court proceedings, he was not given sufficient time to study his case file, the legal assistance he was receiving from the lawyers appointed to him by the authorities was perfunctory, he was not given an opportunity to effectively participate in the proceedings, in particular to submit his arguments and to contest the arguments of the prosecutors, he was not allowed to call witness on his behalf, and he was unlawfully expelled from several hearings. B.     The applicant’s allegations of police torture after his arrest on 18   September 2001 The applicant alleges that between 18   September and 5 October 2001 he was tortured by the police with the aim of obtaining his confession. In particular, on 18   September 2001 while the applicant was at the police office he was severely beaten-up and also subjected to various forms of torture, including the administration of electric shocks, hanging over a horizontal crowbar while handcuffed with his head pointing downwards (the applicant called this ill-treatment “lom” ( лом )) and suffocation using a gas mask and a plastic bag. Sometime later on the same day the applicant was examined by a medical expert who noted that the applicant had multiple injuries on his head and arms. The applicant states that the expert did not note down other injuries resulting from the ill-treatment to which the applicant had been subjected after his arrest. The applicant’s subsequent examinations by various doctors, in particular when the applicant was transferred to the SIZO in Kherson, was allegedly perfunctory, as a result of which his injuries were not duly recorded. The lawyers appointed by the authorities to represent the applicant in the criminal proceedings were reluctant to help the applicant with his complaints of ill-treatment. The applicant’s complaints of police torture to the prosecutors were rejected as unsubstantiated. The prosecutors refused to initiate criminal investigation into the matter, noting in particular that during the applicant’s arrest the police lawfully used “measures of physical influence”, which was inter alia evidenced by the results of the applicant’s medical examination. The prosecutors also noted that the doctors who had subsequently examined the applicant had found no traces of ill-treatment on his body. The police officers, who were questioned concerning the applicant’s complaints, stated that they had not ill-treated him. The applicant unsuccessfully challenged the prosecutors’ decision before the courts of three judicial instances. While the courts of two judicial instances examined the merits of the complaints and rejected them as unsubstantiated (on 10 September and 19 October 2004), the Supreme Court held that those decisions could not be appealed against in cassation (on 12 August 2005). The applicant states that the judge who had previously decided on the prosecutors’ request for extension of the applicant’s pre-trial detention (see below), subsequently dealt with his complaints of torture. On 11 December 2007 the Constitutional Court delivered a judgment giving an official interpretation of the legislative provisions on cassation appeals in the framework of criminal procedure. The Constitutional Court, having noted the examples of divergent practice of the Supreme Court on the matter, held that the impugned provisions did not exclude the possibility of challenging in cassation court decisions on complaints against refusals to initiate criminal investigation. After the delivery of the judgment of the Constitutional Court the applicant did not resubmit his cassation appeal. He raised the complaints of police torture in the course of his trial (see above), though he claims that they were not duly examined by the courts. C.     The applicant’s detention The applicant was first arrested on 29 May 1997. He was detained until 14 June 1997 on the basis of a court’s decision finding him guilty of petty hooliganism, which was an administrative offence. During his detention the applicant was allegedly beaten up by the police and subjected to inhuman conditions of detention. In January 1998 the applicant was detained for ten hours, during which he was allegedly beaten up by the police. On 4 August 2001 the applicant was arrested on suspicion of having committed a robbery in 1998 and was placed in the police detention centre (“the ITT”). The police officers allegedly tried to coerce him to confess of having committed the above crime. On 13 August 2001 the applicant was released. On 18 September 2001 the applicant was arrested by the traffic police. As he resisted the arrest, using fire arms and seriously injuring a police officer, other police officers used force against the applicant. In particular, the applicant received numerous blows in the head and body and lost consciousness. The applicant was taken to a police station and then he was placed in the ITT for seventeen days. On 22 September 2001 a judge from the Komsomolskyy District Court in Kherson ordered the applicant’s pre-trial detention for an initial period of one month. The applicant’s further detention was warranted by the courts upon the prosecutors’ requests and the applicant has remained in detention for the entire duration of the proceedings in his case. The applicant claims that he did not take part in the court hearings on his detention and that the court decisions in that regard lacked reasons. The applicant’s lawyer, who was present at some of the hearings, expressed her agreement with the prosecutors’ requests for the applicant’s detention. The conditions of the applicant’s detention in the ITT, where he was detained between 4 and 13 August 2001 and between 18 September and 5   October 2001, were allegedly inhuman. He was also often beaten up in the ITT, including for the reason of requesting the guards to allow him to meet with a priest. During the applicant’s personal search in the ITT, a cross which he wore around his neck was seized by the guards. Subsequently, for various periods of time, the applicant was detained in the SIZOs in Kherson, Odessa and Kyiv, in which he was allegedly subjected to inhuman conditions of detention. In particular, he was held in unheated and dump cells, which had no ventilation and had poor illumination. He was not allowed to meet with his family members. Between 7 and 21 February 2002 the applicant was detained at a psychiatric clinic, in which he underwent various examinations principally aimed at determining whether he could be held criminally liable. According to the applicant the conditions of his detention at the clinic were inhuman. During his transportation between the SIZOs and to court hearings, the applicant was allegedly handcuffed at all times, was not given sufficient food and water, was deprived of sleep and could not go to a toilet when he needed. During the entire duration of the court hearings he was also handcuffed, although he was placed in a special cage and there were ten armed guards present in the court room. During the applicant’s transportation to the hearings at the Supreme Court and during those hearings in August 2005, March, April and May 2006 the applicant was allegedly forced to wear a special uniform for life prisoners. The applicant also states that during his detention his health condition seriously worsened, in particular he contracted tuberculosis and had unspecified heart problems, for which he did not obtain adequate medical treatment. His requests for such assistance were allegedly refused by the authorities, including the courts dealing with his criminal case. The applicant lodged a number of complaints about the conditions of his detention and transportation and about his ill-treatment during the court hearings with the authorities, including the prosecutors and the courts, but to no avail. Some of the complaints were rejected as unsubstantiated, while to some of them the applicant did not receive a reply. The applicant has submitted documents concerning the proceedings on his complaints about the conditions of his transportation from the SIZO in Odessa to the SIZO in Kyiv in July 2005. Those proceedings were completed by the final decision adopted by the Supreme Court on 10 October 2007, of which the applicant was informed on 25 October 2007. The applicant alleges that the courts heard the case in the presence of the prosecutors, though neither the applicant nor his lawyers were allowed to take part. The courts allegedly disregarded the applicant’s written submissions and did not provide reasons for their decisions. According to the applicant, for making complaints against the authorities he was beaten up at the SIZO in Kyiv and in Kherson on a number of occasions in August 2005. In particular, during his daily walk on 16 August 2005 at the SIZO in Kyiv the applicant was hit in his stomach and his legs by a guard. The applicant claims that the injuries resulting from the beating were noted down in the medical report compiled by the staff of the SIZO in Kyiv on the same date. D.     The applicant’s allegations of hindrance of his right of application According to the applicant, the authorities persecuted him for lodging his complaints with the Court and blocked some of his letters addressed to the Court. He provides no details in that regard. In January 2007 the Court invited the applicant to submit copies of his cassation appeals bearing indication of the dates on which he had lodged them with the courts dealing with the criminal case against him. The applicant’s requests for such copies were refused by a judge of the trial court (the Kharkiv Court), who noted inter alia that the applicant had had a possibility to familiarise himself with his case file before the trial. Sometime later the applicant was given access to his criminal case file, which included his cassation appeals; however the applicant alleges that he was not given the necessary facilities to prepare copies of the appeals with indication of dates, as instructed by the Court. The applicant submitted copies of some of the documents from his criminal case file, including inter alia copies of the decisions concerning his complaints of police torture and ill-treatment during his transportation in 2005, two judgments concerning the applicant’s criminal charges, two decisions warranting the applicant’s detention, and documents concerning the applicant’s medical treatment in detention. He claims that he is unable to provide copies of other documents, as he has no access to his domestic case file. COMPLAINTS Relying on Article 3 of the Convention, the applicant complains that he was tortured by police officers, beaten by guards at the SIZOs, subjected to inhuman and degrading conditions of detention, including during his transportation between different SIZOs. He also complains that he was not provided with adequate medical assistance in detention. The applicant alleges that the authorities failed to carry out an effective investigation into his complaints of ill-treatment and torture. The applicant further complains under Article 5 §§ 1, 3, 4 and 5 of the Convention that his detention was unlawful and lengthy; that the police failed to bring him promptly before a judge to review the lawfulness of his arrest and detention in August and September 2001; that the courts failed to ensure just and effective review of the lawfulness of his pre-trial detention; and that he did not have the possibility to claim compensation for his unlawful detention. The applicant also complains that his placement in the psychiatric clinic was contrary to Articles 3 and 5 of the Convention. Relying on Articles 6 and 7 of the Convention and Article 2 of Protocol No. 7, the applicant complains that the criminal proceedings against him were unfair and lengthy. The applicant alleges that, given the application of special means of restraint to him during the court hearings at the Supreme Court, his trial fell short of the requirements of Article 6 of the Convention. The applicant complains under Article 8 of the Convention that during the criminal proceedings he was not allowed to meet with his family members and that his correspondence and telephone conversations with them were intercepted by the authorities. Under the same provision of the Convention the applicant complains that the authorities were unlawfully collecting his and his family members’ personal information since 1997. Relying on Article 8 of the Convention and Article 1 of Protocol No. 1, the applicant complains about the unlawfulness of the searches in his and his family members’ premises and about the seizure of his and his family members’ property. The applicant further complains about a violation of Article 9 of the Convention in that his cross was seized by the police and that he could not meet with a priest while the applicant was detained in the ITT. He also complains about a violation of Articles 10, 13, 14, 17 and 34 of the Convention, stating that the authorities hindered the possibility to defend his rights in the domestic proceedings and before the Court. He claims that he did not receive protection from the authorities as regards his complaints, as he was sentenced for life, and that his complaints were not dealt with by the domestic courts in a fair and equal manner. The applicant also complains under Articles 6, 10, 13 and 34 of the Convention about the authorities’ refusal to provide him with a possibility of obtaining copies of the documents needed for his application. QUESTIONS TO THE PARTIES 1.     Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints that he was tortured by the police after his arrest on 18   September 2001 and that he was beaten by a guard in the pre-trial detention centre (“the SIZO”) in Kyiv on 16 August 2005?   2.     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 at various detention centres from 5 October 2005 onwards, the conditions of his transportation between those detention centres and about the lack of adequate medical assistance in detention?   3.     Have the authorities conducted an effective investigation into the applicant’s above complaints of torture and other forms of ill-treatment, including the lack of medical assistance, in accordance with Article 3 of the Convention?   4.     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?   5.     Has the applicant got at his disposal effective domestic remedies for his above complaints under Articles 3 and 6 of the Convention, as required by Article 13 of the Convention?   6.     Has the applicant’s deprivation of liberty from 18 September 2001 onwards, excluding the periods from 7 December 2004 to 11 May 2006, from 20 April 2007 to 10 October 2007, and from 29 December 2009 to 20   September 2011, been in breach of Article 5 § 1 (c) of the Convention?   7.     Has the length of the applicant’s pre-trial detention during the impugned period been in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?   8.     Has the applicant have at his disposal an effective and speedy procedure by which he could challenge the lawfulness of his detention during that period, as required by Article 5 § 4 of the Convention?   9.     Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article   5   §§   1   (c), 3 and 4, as required by Article 5 § 5 of the Convention?   10.     Has the applicant been able to effectively exercise his right of petition without any hindrance, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the opportunity to obtain copies of the documents from his case file and to send them to the Court in order to pursue his application?