FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 16984/04 and 9947/05 by Mikhail Igorevich BELYAEV and Aleksandr Vladimirovich DIGTYAR against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 12 January 2010 as a Chamber composed of:

Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application s lodged on 20 April 2004 and 1 March 2005 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Mikhail Igorevich Belyaev (“the first applicant”) and Aleksandr Vladimirovich Digtyar (the “second applicant”), are Ukrainian nationals who were born in 1981 and 1979 respectively and are currently serving life sentences in prison.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Criminal proceedings concerning the second applicant

On 11 February 2001 the second applicant was arrested on suspicion of several crimes, including murders and robberies. According to the second applicant, the reasons for his arrest were not sufficiently explained to him; instead, he was beaten up with the purpose of extracting a confession from him; and his complaints on this account were ignored. Further, during the investigation the applicant ’ s lawyer did not participate in some of the procedural actions.

On 22 April 2002 the Sumy Regional Court of Appeal found the second applicant guilty of aggravated murders, robberies and other crimes and sentenced him to life imprisonment with confiscation of property.

The second applicant appealed in cassation against this judgment, alleging that his involvement in the crimes was insufficient to warrant it, and asked for the sentence imposed to be reduced.

On 30 July 2002 the Supreme Court upheld the applicant ’ s conviction as substantiated.

2. Criminal and civil proceedings concerning the first applicant

On 14 April 2003 the Sumy Regional Court of Appeal found the first applicant guilty of aggravated murders and other crimes and convicted him to life imprisonment.

On 2 September 2003 the Supreme Court upheld the applicant ’ s conviction.

On 26 April 2004 the Konotopskyy District Court (“the District Court”) ordered the first applicant to pay damages to the victims of the crimes.

On 31 May 2004 the applicant appealed against that judgment.

On 30 June 2004 the District Court declared the appeal inadmissible as not submitted in compliance with procedural rules.

The applicant did not appeal against the decision of 30 June 2004.

On 20 May 2005 the first applicant lodged with the District Court a complaint against the local Bar Council for failure to reply to his requests for legal advice.

On 17 June 2004 the District Court declared the complaint inadmissible. The applicant did not appeal against that decision.

On several occasions the applicant requested the domestic authorities to review his conviction under the new circumstances, but to no avail.

3. Issues related to the detention of both applicants in the Sumy no. 25 Pre-Trial Detention Centre and their transfer to prison

On unspecified dates the applicants were placed in the Sumy no. 25 Pre ‑ Trial Detention Centre (“the Sumy SIZO”) pending trial in the criminal proceedings against them.

On 29 January and 1 July 2003 and 27 January 2004 the second applicant dispatched letters to the Court via the mailing service of the Sumy SIZO. The outgoing letters were registered under the numbers 101, 771 and 135 respectively.

On 26 November 2003 and 2 and 9 February 2004 the first applicant dispatched letters to the Court via the mailing service of the Sumy SIZO. The outgoing letters were registered under the numbers 1654, 185 and 211 respectively.

The letters indicated by the applicants did not reach the Registry of the Court. According to the applicants, these letters were read by the officials of the Sumy SIZO and not sent to the Court.

In the same way the applicants dispatched letters to other international institutions, such as the Council of Europe Commissioner for Human Rights, the Office of the High Commissioner for Human Rights, the UN Human Rights Committee, the UN Commission on Human Rights, and the UN Committee Against Torture.

These letters were also allegedly reviewed by the officials of the Sumy SIZO and not sent to the addressees.

Several times in 2003-04 the applicants were allegedly subjected to ill-treatment by the staff of the Sumy SIZO. In addition, the applicants ’ personal belongings were regularly gone through in their absence; they allegedly had not been allowed sufficient family visits as provided by the domestic law.

The conditions of the applicants ’ detention in the Sumy SIZO were unsatisfactory. In particular, the cells were dark, dirty, and cold in winter and hot in summer, which gave rise to various illnesses. For at least two years there was no hot water supply; no footwear was supplied, while the inmates were prohibited from wearing their own footwear. As a result, in winter the applicants could not benefit from their entitlement to daily open air physical exercise. The bed linen consisted only of a sheet. Despite their requests the applicants were not provided with any medical assistance in respect of their heart conditions, while the storing and administering of any medicine in the cell was forbidden.

The applicants complained to the domestic authorities on account of the conditions of their detention in the Sumy SIZO. In particular, on 16 January, 14 June and 25 July 2004 the relevant complaints were handed to the staff of the Sumy SIZO for onward dispatch to the domestic authorities.

On 28 August 2004 the applicants were transferred to the Romny no. 56 Prison (“the Romny Prison”) where on arrival they were allegedly beaten up by the prison staff.

4. Issues related to the detention of the second applicant in the Romny Prison

On 4 October 2004 this applicant was allegedly beaten for failure to comply with disciplinary rules and further punished with a ten-day placement in a punishment cell.

In the course of his detention in the Romny Prison, the applicant attempted to send a number of letters, addressed, among others, to the following addressees:

- the national ombudsman (dated 20 December 2004 and 5 January and 14 February 2005),

- the Office of the General Prosecutor of Ukraine (dated 25 October 2004 and 14 February and 14 July 2005),

- the Coordination Committee of the President of Ukraine on Fighting against Corruption and Organised Crime (dated 25 October 2004 and 4 January 2005),

- the European Court of Human Rights (dated 26 July 2005),

- the Council of Europe Commissioner for Human Rights (dated 26 July 2005).

However, these letters were read by officials of the Romny Prison and returned to the applicant.

On 26 July 2005 the applicant, wishing to express his disagreement with the refusals of the Romny Prison staff to dispatch his correspondence, embarked on a hunger strike. On 29 July 2005 he resumed eating.

On 31 January 2008 the Court of Appeal rejected a request by the applicant ’ s mother for a copy of the bill of indictment, since the applicant had been given a copy of this document.

According to the applicant, the medical assistance in the Romny Prison is unsatisfactory.

5. Attempt to retract the application by the first applicant

By the letter of 12 August 2009 the applicant informed the Court that he wished to terminate the consideration of his application alleging that his debts to the victims of the crimes had been covered by the State.

By the letter of 14 September 2009 the applicant informed the Court that the issues of his debts to the victims of the crimes had not been resolved by the State and he was mislead by the authorities when requesting the Court to terminate the consideration of his application. He therefore asked the Court to disregard the letter of 12 August 2009 and insisted on further proceedings.

B. Relevant domestic law

1. The Pre-Trial Detention Act of 30 June 1993 (in the wording relevant at the material time)

Section 13 of the Act provides, inter alia , for persons detained on remand to be able to correspond with relatives, other persons and legal entities upon written consent by the authority in charge of the criminal case against the detainee concerned.

The officials of the detention centre must review all detainees ’ letters except those addressed to the national ombudsman and the prosecutor.

If a letter is related to the criminal case against the detainee concerned it has to be handed over within three days for consideration by the authority in charge of the detainee ’ s criminal case. Letters containing information which might obstruct justice must not be dispatched to the addressee but must be handed over to the authority in charge of the detainee ’ s criminal case. The detainee and the prosecutor must be informed of the interception made.

If a letter is not related to the detainee ’ s criminal case, it must be answered by the officials at the detention centre or sent on to the addressee.

2. Code on Enforcement of Sentences of 11 July 2003 (in the wording relevant at the material time)

Article 113 of the Code provides, inter alia , that letters sent and received by prisoners shall be reviewed by officials of the prison. Letters addressed to the national ombudsman and prosecutor shall not be reviewed.

3. Order no. 7 of 28 October 2002 of the General Prosecutor of Ukraine

The Order reads that supervising prosecutors inspect pre-trial detention facilities and the prisons once a month and once every six months respectively.

The Order further sets out that supervising prosecutors should meet with detainees and prisoners once a month.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that they were ill-treated in the Sumy SIZO. The applicants further complain that on 28 August 2004, upon arrival at the Romny Prison, they were ill-treated by the prison staff.

2. The applicants complain under Article 3 of the Convention that the physical conditions of their detention in the Sumy SIZO were unsatisfactory and the medical assistance was inappropriate.

3. The applicants complain that the officials of the Sumy SIZO went through their personal belongings and did not allow them sufficient family visits as provided by the domestic law.

4. The applicants complain under Articles 8, 10, and 34 of the Convention that the officials of the Sumy SIZO reviewed their letters to the various authorities, including the Court, and refused to send them on to the addressees.

5. The applicants complain that their rights under Articles 1, 9, 13, and 14 of the Convention were infringed during their detention in the Sumy SIZO. The second applicant complains that the same provisions of the Convention were also violated by the staff of the Romny Prison.

6. The first applicant complains under Article 6 § 1 of the Convention that he was convicted for the crimes unfairly and that his requests to review the judgments under the new circumstances were rejected groundlessly.

7. The first applicant complains under Articles 6 § 1 and 13 of the Convention that the proceedings in his civil case were unfair. He complains that he was not provided with legal advice and that his appeal was dismissed unlawfully.

8. The first applicant further complains under the same provisions of the Convention that his proceedings against the local Bar Council were conducted unfairly.

9. The first applicant complains under Article 34 of the Convention that his attempt to retract on 12 August 2009 the application from the Court was instigated by the domestic authorities.

10. The second applicant complains that he was ill-treated by the police authorities in order to secure confessions from him to the crimes. He further complains that on 4 October 2004 he was ill-treated in the Romny Prison and unlawfully punished with ten days ’ detention in a punishment cell.

11. The second applicant complains that the medical assistance in the Romny Prison was inappropriate.

12. The second applicant complains that between 26 and 29 July 2005 he was forced into a hunger strike in order to compel the Romny Prison staff to dispatch his letters.

13. The second applicant complains under Article 5 § 2 of the Convention that the reasons for his arrest were not explained to him.

14. The second applicant complains under Article 6 §§ 1, 2, 3 (a), (b), (c), and (d), and Articles 7 and 17 of the Convention that the criminal proceedings against him were unfair. In particular, he contends that the courts misinterpreted the facts, wrongly applied the law, and used inadmissible evidence for the conviction; he did not have sufficient time to study the case file before the trial; his lawyer was absent for certain periods of the proceedings and did not represent him properly; and that he could not examine some witnesses.

15. The second applicant complains under Articles 8, 10, and 34 of the Convention that the staff of the Romny Prison reviewed his letters to the State authorities and international institutions, including the Court, and refused to send them on to the addressees.

16. Relying on Article 34 of the Convention the second applicant complains that his mother was refused a copy of the indictment bill in his criminal case.

THE LAW

1. The applicants complain that the physical conditions of their detention in the Sumy SIZO were unsatisfactory and the medical assistance was inappropriate. They rely on Article 3 of the Convention, which reads as follows:

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the applications to the respondent Government.

2. Both applicants complain that the officials of the Sumy SIZO reviewed their letters to the various authorities, including the Court, and refused to send them to the addresses. The second applicant also complains that the same acts were committed by the staff of the Romny Prison. The applicants rely on Articles 8, 10, and 34 of the Convention.

The Court finds it appropriate to examine these complaints under Articles 8 and 34 of the Convention, which provide as follows:

Article 8 (right to respect for private and family life)

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 34 (individual applications)

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the applications to the respondent Government.

3. The first applicant complains that his attempt to retra ct on 12 August 2009 the application from the Court was instigated by the domestic authorities. He relies on Article 34 of the Convention, which provides as follows:

Article 34 (individual applications)

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

4. The Court has examined the remainder of the applicant ’ s complaints under Articles 3, 5, 6, 7, 8, 9, 13, 14, 17 and 34 of the Convention and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants ’ complaints under Articles 3 of the Convention (allegedly inappropriate conditions of detention in the Sumy SIZO), Articles 8 and 34 of the Convention (alleged interference with the right to respect for correspondence; alleged instigation by the authorities to retract the application by the first applicant);

Declares the remainder of the application inadmissible.

Stephen Phillips Peer Lorenzen Deputy Registrar President