CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 octobre 2013

.s800EAC49 { font-size:12pt } .sF9195E13 { margin-top:24pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s786E59B9 { margin-top:36pt; margin-bottom:24pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } FIFTH SECTION Application no. 24874/08 Aleksandr Viktorovich BAKCHIZHOV against Ukraine lodged on 7 May 2008 STATEMENT OF FACTS The applicant, Mr Oleksandr Viktorovych Bakchizhov, is a Ukrainian national who was born in 1969 and lives in Kyiv. The facts of the case, as submitted by the applicant, may be summarised as follows. On 4 October 2006 the applicant was arrested on suspicion of having injured a person. The applicant remained in detention for the entire duration of the criminal proceedings against him. The applicant states that he was injured during the incident on 4 October 2006 and that the police refused to provide him with medical assistance in that regard. According to the applicant, during the investigation he requested the investigator to allow him to be represented by a lawyer. The applicant’s request was refused. During the trial by the Brovary Court the applicant allegedly submitted to that court a written request for a lawyer, to which he did not receive a reply. During his questioning by the trial court the applicant stated that he had injured the victim while acting in self-defence. On 22 January 2007 the applicant was found guilty of infliction of bodily injuries and sentenced to five years’ imprisonment. The applicant’s conviction was mainly based on the statements of the applicant and of several other persons who had witnessed the conflict between the applicant and the victim. The statements were made at an open hearing. The applicant challenged his conviction on appeal and in cassation, arguing mainly that his requests for legal aid had been unlawfully refused during the investigation and the trial and that the investigators and the trial court had not examined all the circumstances of the case. By decision of 28 March 2007, the Kyiv Regional Court of Appeal rejected the applicant’s appeal, noting in particular that during the investigation and the trial the applicant had been informed of his right to a lawyer and that the applicant had chosen not to be legally represented, which had been recorded in the procedural documents. The Court of Appeal also held that the trial court had examined all the relevant aspects of the case and that the conviction was well-founded. On 23 October 2007 the Supreme Court upheld the decisions of the lower courts and found that it was not necessary to review the case in cassation. From 20 October 2006 to 13 April 2007 the applicant was detained at the pre-trial detention facility (“the SIZO”) in Kyiv. Subsequently, he was detained at the Boryspilska Correctional Colony. The applicant alleges that the conditions of his detention were inhuman (overcrowded cells, poor sanitary and hygiene situation, insufficient heating, lack of drinking water supply, and poor quality of food) and that he was often ill-treated by guards, which included solitary confinement in disciplinary cells, verbal and physical abuses and threats, and humiliating searches during the night time. The applicant also states that he was forced, under the threat of disciplinary punishment, to perform various types of work often lasting for twelve to fourteen hours per day and seven days per week. Moreover, he did not receive adequate medical assistance for various health problems he had in detention. The applicant tried to have the complaints about his ill-treatment in detention examined by the domestic authorities, including the prosecutors and the courts dealing with the applicant’s criminal case. Many of those complaints were allegedly blocked by guards or ignored by those to whom they were addressed. The applicant’s correspondence was allegedly screened by guards and he was not allowed to keep any documents relating to his complaints, including replies from the domestic authorities. The complaints, to which the applicant received replies, were allegedly not duly examined. In particular, by decision of 26 April 2007, the prosecutors refused to institute criminal investigation into the applicant’s complaints about his ill-treatment in the Sumy SIZO, allegedly without having carried out a thorough and objective inquiry. The applicant also alleges that the administration of the Correctional Colony often delayed the delivery of the Court’s letters to the applicant and unlawfully opened them. During his detention at the Correctional Colony the applicant did not have access to his domestic criminal file. He requested the Brovary Court, at which his case file was kept, to provide him with copies of various documents from the file, including his cassation appeal and the decision of the Supreme Court in his case. The applicant needed those documents to substantiate his application to the Court. The requests for such copies were refused as not based on the law. The Brovary Court also informed the applicant that the case file did not contain the applicant’s cassation appeal or any decisions of the Supreme Court. On 17 June 2011 the applicant was released from the Correctional Colony. Subsequently, he was given full access to his criminal case file and could make copies by hand of various documents contained in it. He has not been given access to the documents relating to his detention. COMPLAINTS Relying on Article 3 of the Convention, the applicant complains that he was subjected to the inhuman conditions of detention, was not provided with adequate medical assistance and was ill-treated by guards. Relying on Article 13 of the Convention, the applicant complains that there was no effective remedy available to him at the domestic level for his complaints under Article 3. The applicant further complains under Article 4 of the Convection that he was required to perform forced labour. He also complains under Articles 10 and 17 of the Convention about the interception of his correspondence by guards. The applicant complains under Article 34 of the Convention that during his detention the authorities refused to provide him with the possibility to obtain copies of documents for substantiation of the application. He also complains under the same provision that the authorities hindered his communication with the Court. QUESTIONS TO THE PARTIES 1.     Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints concerning the conditions of detention and about his ill-treatment by guards at the Boryspilska Correctional Colony and about the lack of adequate medical assistance in detention?   2.     Did the applicant have to perform “forced or compulsory labour”, contrary to Article 4 of the Convention, during his detention at the Boryspilska Correctional Colony? In particular, did the work the applicant was required to perform go beyond what was ‘ordinary’ within the meaning of Article 4 § 3 (a) of the Convention?   3.     Was there a violation of the applicant’s right to respect for his correspondence, contrary to Article 8 of the Convention, having regard to his allegations of interception of his correspondence by the prison authorities?   4.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?   5.     Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of petition, 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 the application? Did the authorities hinder the applicant’s communication with the Court?