AS TO THE ADMISSIBILITY OF

Application No. 38812/97

by Borislav Yevgenyevich POLTORATSKIY

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 19 September 1997 by Borislav Yevgenyevich POLTORATSKIY against Ukraine and registered on 28 November 1997 under file No. 38812/97;

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 10 April 1998 and the observations in reply submitted by the applicant on 6 and 22 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 father, Mr. Yevgeniy N. Poltoratskiy .

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

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

According to the applicant, after the first-instance judgment, he was placed in a separate cell.  He could neither write to his family, nor could his lawyer visit him.  He asked several times to see his lawyer.  He says that the lawyer was not able to visit him for six months.

On 22 February 1996 the Supreme Court ( верховний 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 ) to one of the cells for his category of persons awaiting execution of his sentence.

According to the applicant, his lawyer, Ms L., applied to visit him on 30 March 1996 to give him the Supreme Court's decision in the case. Permission was refused by the prison governor.

COMPLAINTS

The applicant, invoking Article 1, Article 3, Article 5 paras. 1(a), 1(c) and 2, Article 6 paras. 1, 2, 3(a), 3(b) and 3(d) and Article 9 para. 1 of the Convention, together with 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.  He further complains about the conditions to which he is subjected on death row.  He submits that his right to see his family is restricted and that he is prevented from seeing his lawyer and from sending and receiving any correspondence.  He also claims that he has been denied any visit from a priest.  He further claims that he was not allowed to see his lawyer for six months after the first-instance judgment. He submits that he is not allowed to watch television or to have any communication with the outside world.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 September 1997 and registered on 28 November 1997.

On 11 December 1997 the Commission decided to communicate the application to the respondent Government.

On 7 March 1998 the Commission decided to put a supplementary question on Article 9 of the Convention to the Government.

The Government's written observations were submitted on 26 March and 10 April 1998, after two extensions of the time-limit fixed for that purpose.  The applicant replied on 6 and 22 May 1998.

THE LAW

1. The applicant, invoking Article 1, Article 3, Article 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, 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 under Articles 1, 3 and 9 para. 1 of the Convention and, in substance, under Article 8 of the Convention about the conditions to which he is subjected on death row.  He submits that his right to see his family is restricted and that he is prevented from seeing his lawyer and from sending and receiving any correspondence.  He also claims that he has been denied any visit from a priest.  He further claims that he was not allowed to see his lawyer for six months after the first-instance judgment.  He submits that he is not allowed to watch television or to have any communication with the outside world.

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 for the benefit of persons sentenced to capital punishment are arranged and fulfilled pursuant to legislation on health protection.

Pursuant to Section 12 of the 1993 Act, prior to the sentence being enforced, 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 from solicitors and legal assistants at the request of a sentenced person or his relatives, after the case has been dealt with by an appellate court, may be granted by permission of the Head of the Main Directorate of the Ministry of the Interior, the Head of the Regional Directorate of the Ministry of the Interior or his Deputy responsible for the work of the investigative isolation cell. According to Section 12 of the 1993 Act, visits from defence counsel and solicitors are granted without limitation as to number and length.

The Government note that after the first-instance judgment, on 13 December 1995, the applicants' parents and his solicitor applied for, and received, permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996.  The applicant's lawyer, Mr. F., visited him on 21 December 1995 and 7 January 1996.

According to the Government, during the period from 22 February 1996 to 29 December 1997, the parents applied for the permission to visit the applicant in the Investigative Isolation Cell of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November, 25 December 1996, 3 and 20 June and 19 September 1997.  They were granted permission for visits on 24 February, 5 March, 5 April, 4 May, 2 July, 4 October and 4 December 1996, 4 March, 4 June, 4 September and 4 December 1997.

The applicant's solicitor, Ms L., applied for permission to visit the applicant on 25 April, 11 November and 18 and 19 December 1996.  The first request was granted but only for a visit on 7 May 1996; the remainder were granted for the dates requested.

The Government further submit that persons sentenced to death are allowed to send an unlimited number of letters.  During 1995-1998, the applicant sent 31 letters, including 24 letters related to the criminal case and 7 letters to his relatives.  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 on 17 September 1997 (the letter was forwarded to the address of the applicant's parents).  Since that time, he had sent letters to his parents on 19 and 26 November and 31 December 1997, and 5, 16 and 20 January 1998.  The applicant received letters from his parents on 18 and 29 September, 19 October and 20 November, 24 December 1997 and 16 January 1998.

The Government add that the Prosecutor General has conducted a thorough investigation into issues raised in the applicant's applications and by his parents concerning the application of illegal methods of investigation in the applicant's case, namely torture and brutal and inhuman treatment. The allegations have not been proved and have been found unsubstantiated.  In fact, complaints from the applicant, his parents, his lawyer, Ms. L., and his defence counsel were received on 11 March, 8 and 9 April, 13, 14 and 29 May, 24 July, 11 September and 25 October 1996 and 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996 and 28 and 31 March and 20 May 1997.  On 31 July 1997, the exchange of letters and the proceedings concerning the complaints filed by the applicant, were terminated pursuant to Section 12 of the 1993 Act.

The Government submit that the applicant's rights under Articles 3, 8 and 9 of the Convention were not breached, that the applicant has at his disposal effective remedies as provided for in Article 13 of the Convention and that he has not used all means available under national law to appeal against decisions and actions of the state authorities, which he considers illegitimate.

The applicant contests the Government's observations.  He submits  that apart from the 1993 Act, persons sentenced to death in Ukraine are governed by certain "Regulations", the content of which remains a closely guarded secret except for police officers.  He notes that the Government omit to mention that under the terms of these Regulations, exercise in the fresh air, watching television, buying newspapers and receiving food parcels from relatives are prohibited. The applicant is therefore prevented from enjoying the rights granted to him by the 1993 Act quoted by the Government.

The applicant notes that the Deputy Director of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior, upon his father's complaint concerning the conditions in which the applicant is being held, made a reference to these Regulations.  Moreover, the applicant's father received a notification from the deputy governor of the prison from which it appears that the 1993 Act does not apply to the applicant.

According to the applicant, if, as the Government claim, the 1993 Act is applicable to him, then, according to Sections 9 para. 1 and 13 thereof, he is entitled to take daily exercise in the fresh air, to receive parcels twice a month, to watch television and to send and receive letters.  However, from December 1995 to 1998, all of this was strictly prohibited to him. Up to September 1997, he was also prohibited from sending or receiving letters.

He also states that his father was refused permission to visit him on 29 May 1995, 10 June and 31 July 1996 without any reason.  Moreover, from July 1996 onwards, instead of being allowed to pay monthly visits lasting between 1 and 2 hours, the applicant's father was allowed to visit him only once every three months for not more than one hour.

The applicant submits that the Government's submissions concerning the visit of his lawyer, Ms. L. are incomplete and untrue.

As regards visits from a priest, the applicant submits that he, his father and members of the clergy have repeatedly applied to the prison authorities and the Administration of the Investigative Isolation Cell of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission for him to receive a visit from a priest.  However, no priest has been allowed to see him.

The applicant further denies the Government's submission concerning correspondence with his father that neither he nor his father, have made any requests to this effect to the relevant authority.  He notes that these requests were made verbally. Up until September 1997, any correspondence with his father was strictly prohibited.  It was not until September 1997 that the deputy governor of the prison verbally informed the applicant's mother that the applicant could send and receive mail.

The applicant also objects to the Government's submission that he did not complain about the conditions in which he is being held.  He submits that on several occasions he applied unsuccessfully to the prison authorities for permission to make a petition to the European Commission of Human Rights.

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 part of the application concerning the              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