AS TO THE A DMISSIBILITY OF

Application No. 39042/97

by Mikhail Sergeyevich KUZNETSOV

against Ukraine

The European Commission of Human Rights sitting in private on 30 October 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 November 1997 by Mikhail Sergeyevich KUZNETSOV against Ukraine and registered on 18 November 1997 under file No. 39042/97;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 26 March 1998 and the observations in reply submitted by the applicant on 28 May 1998;             

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Ukrainian citizen born in 1976.  He is currently detained in prison in Ukraine.  He is represented before the Commission by his mother, Ms. Mariya G. Kuznetsova .

The facts of the present case, as submitted by the parties, may be summarised as follows:

On 12 December 1995 the Ivano-Frankovskiy Regional Court ( обласний суд ) convicted the applicant of the murder of four persons and sentenced him to death.

On 22 February 1996 the Supreme Court ( Βерховний Суд ) upheld the judgment of the first instance court.  The applicant was transferred by the authorities in charge of the Investigative Isolation Block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior ( адмєнєстрацєя слєдчого єзолятору Управлєння мєнєстерства внутрєшнєх справ ) in one of the cells for his category of persons awaiting his sentence.  According to the applicant, he was deprived of all his rights.

COMPLAINTS

The applicant complains that the criminal proceedings were unfair, that the charges were trumped-up and that he was compelled to plead guilty.  He also claims that the national authorities did not treat properly his request to have his criminal proceedings reopened. He further complains about the conditions to which he is subjected on death row.  He submits that his right to see his mother is restricted, that until September 1997, he was prevented from sending any correspondence to and receiving any correspondence from her and that he is not allowed to watch television or have any communication with the outside world.  He also submits that he was refused the visit of a priest.  He invokes Articles 1, 3, 5 paras. 1(a), 1(c) and 2 and Article 6 paras. 1, 2, 3(a), 3(b) and 3(d) of the Convention and Article 1 of Protocol No. 6.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 November 1997 and registered on 18 December 1997.

On 23 January 1998 the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 26 March 1998.  The applicant replied on 28 May 1998.

THE LAW

1. The applicant, invoking Articles 1, 3, 5 paras. 1(a), 1(c) and 2, Article 6 paras. 1, 2, 3(a), 3(b) and 3(d) of the Convention and Article 1 of Protocol No. 6, complains that the criminal proceedings were unfair, that the charges were trumped-up and that he was compelled to plead guilty.  He also claims that the national authorities did not treat properly his request to have his criminal proceedings reopened.

The Commission observes that the applicant's complaints concerning the criminal proceedings relate to a period prior to 11 September 1997, which is the date of the entry into force of the Convention with respect to Ukraine.  However, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party.  As regards the applicant's complaint that the national authorities did not treat properly his request to have his criminal proceedings reopened, the Commission recalls that that right is not, as such, guaranteed by the Convention.  Moreover, Article 6 para. 1 of the Convention does not apply to proceedings for the reopening of criminal proceedings, given that someone who applies for his case to be reopened and whose sentence has become final is not "charged with a criminal offence" within the meaning of Article 6 (see No. 19255/92 and 21655/93, Dec. 16.5.95, D.R. 81, p. 5).  Moreover, the Commission recalls that Ukraine has not ratified Protocol No. 6.

It follows that this part of the application is outside the competence ratione temporis and ratione materiae of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2.

2. The applicant further complains about the conditions to which he is subjected on death row.  He submits that his right to see his mother is restricted, that until September 1997, he was prevented from sending any correspondence to and receiving any correspondence from her and that he is not allowed to watch television or have any communication with the outside world.  He also submits that he was refused the visit of a priest.  He invokes Article 1, and, in substance, Articles 3, 8 and 9 of the Convention.

The respondent Government submit that the legal status of persons sentenced to capital punishment and the procedures for treating them are laid down in the Imprisonment Before Trial Act of 30 June 1993 ("the 1993 Act") and the Code of Criminal Procedure.  According to Section 8 of the 1993 Act, a person sentenced to capital punishment is kept in custody, separated from other prisoners.  The cell to which the applicant was transferred after his sentence complies with the requirements for the physical and everyday treatment of imprisoned persons as well as sanitary and hygiene rules: the cell measures 9m  or 27.7m , it has a radio, a bed, a table, sufficient natural and electrical lighting, heating, running water and a toilet, as stipulated by Section 11 of the 1993 Act.

The Government stress that the applicant is provided with three meals a day, an individual sleeping area, clothing and footwear of the established type as well as other types of material and everyday provisions.

The Government also submit that medical assistance, treatment, prophylactic and anti-epidemic measures among persons sentenced to capital punishment are arranged and fulfilled pursuant to legislation for health protection.

According to Section 12 of the 1993 Act, prior to the execution of the sentence, visits of relatives and other individuals to a person sentenced to capital punishment are granted, as a rule, no more than once a month only by a written permission of a court in the jurisdiction of which the case rests.  The length of a visit is defined as up to two hours. Visits by solicitors and legal assistants at the request of a sentenced person or by his relatives, after the case has been considered by an appellate court, can be granted by permission of the Head of the Main Directorate of the Ministry of the Interior, of the Head of the Regional Directorate of the Ministry of the Interior or of his Deputy responsible for supervision of isolation cells. According to Section 12 of the 1993 Act, visits of defence counsel and solicitors are granted without limitation as to number and length.

The Government note that after the first instance judgment had been given, on 14 December 1995 and 4 January 1996 the applicant's parents and, on 18 December 1995 and 17 January 1996, his solicitor requested a permission for a visit and received it.  The mother visited the applicant on 14 December 1995 and on 4 January 1996.  The applicant's lawyer visited him on 18 December 1995 and on 18 January 1996.

According to the Government, during the period from 22 February 1996 to 29 December 1997, the applicant's parents applied for visits to the Investigative Isolation Cell of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior on 29 February, 15 March, 4 April, 5 and 31 May, 23 September, 18 November, 19 December 1996, 3 and 6 June, 24 September 1997 and 4 January 1998.  A permission was granted to them for visits on 29 February, 19 March, 9 April, 7 May, 7 June, 23 September and 4 December 1996, 4 March, 4 June, 4 September, 4 December 1997 and 4 March 1998.  Moreover, the two solicitors of the applicant applied for a visit on 12 March, 11 April, 23 September, 2 and 18 December 1996.  The first request was satisfied on 15 March 1996 and the rest on 29 April, 23 September, 2 and 20 December 1996.

The Government further submit that persons sentenced to death are allowed to send unlimited mail.  During 1995-1998, the applicant sent 24 letters, including 16 letters related to the criminal case and 8 letters to his relatives.  On 6 October 1997 the applicant first raised the question of sending a letter to his parents before the Administration of the Investigative Isolation Cell of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (the letter was forwarded to the address of the applicant's parents).  Since that time, he sent letters to his parents on 3 and 19 November, 9 and 31 December 1997, 19 and 29 January and 16 February 1998.  The applicant received letters from his parents on 24 September, 8 and 24 October and 24 November, 25 December 1997, 14 and 28 January, 5 and 10 February 1998.

The Government add that the Prosecutor General has conducted a thorough investigation on the issues raised in the applicant's applications and on his parents' concerns about use of illegal methods of investigation in the applicant's case including torture together with brutal and inhuman treatment. The allegations have not been proved and were found unsubstantiated.  In fact, complaints of the applicant and his mother were received on 18 April, 19 and 29 July and 26 August 1996, 31 January, 5 February, 15, 19 and 21 March, 14 and 16 May, 10 June, 16 July 1997, and were answered on 22 April, 24 July, 26 August, 16 September 1996, 4 and 7 February, 31 March, 19 and 20 May, 23 June and 23 July 1997.  On 19 May 1997, the exchange of letters and the proceedings concerning the complaints filed by the applicant, was stopped pursuant to Section 12 of the 1993 Act.

The Government conclude that the applicant's rights under Articles 3 and 8 of the Convention were not breached, that the applicant has at his disposal effective means for his defence as provided for in Article 13 of the Convention and that he has not used all national means to complain of allegedly illegitimate decisions and actions taken by the state authorities.

The applicant disputes the Government's submissions.  He claims that the 1993 Act does not apply to him, since the relevant legislation is the "Regulations" which operate in secret.  In accordance with the Regulations, the applicant has not been taken outside for a walk for more than two and a half years.  He also claims that his mother is entitled to see him only once a month.  She has been refused visits to the applicant and, since July 1996, the number of visits has been reduced to one every three months.

The applicant contests the Government's submission that no clergymen requested permission to visit him to hear confession.  Following his application to the Greek Catholic Bishop of the Ivano-Frankivsk diocese, priests did approach the investigative isolation unit on this matter.

The applicant also submits that the Government's statement about his sending letters to his mother and to his relatives is blatantly untrue.  In fact, since September 1997 both he and his mother have been forbidden to send any letters.

The Commission considers, in the light of the parties' submissions, that this part of the case raises complex and serious issues of law and facts under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.  The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaints concerning his criminal proceedings, and

DECLARES ADMISSIBLE the remainder of the application, without prejudging the merits of the case.

        M. de SALVIA                                                      S. TRECHSEL

         Secretary                                                                    President

      to the Commission                                                of the Commission