FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12622/04 by Aleksandr Sergeevich IVAKHNENKO against Russia

The European Court of Human Rights ( Fifth Section), sitting on 21 October 2008 as a Chamber composed of:

Rait Maruste , President, Anatoly Kovler , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 2 March 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Sergeevich Ivakhnenko, is a Russian national who was born in 1960. He is currently serving his sentence in Voronezh OZh – 118/3 penitentiary institution .

The circumstances of the case

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

1. The criminal proceedings against the applicant

On 8 August 2002 the applicant was arrested in Russia , allegedly on request of the police of Uzbekistan . According to the applicant, the police officers ill-treated him in order to make him confess to the rape and murder of a young woman committed in Russia . The applicant confessed in the absence of a lawyer. On 16 August 2002 he was remanded in custody and provided with legal aid counsel.

On an unspecified date the case was submitted to the Voronezh Regional Court . The prosecution ' s case comprised the confession, testimonies by several witnesses, to one of whom the applicant had described the crime scene in detail, forensic tests which had found traces of the applicant ' s clothes on the victim ' s dress, which had been used to strangle her, a forensic test on the victim ' s hair found in the applicant ' s house, and some other evidence.

Following the applicant ' s request, he was tried by a jury.

In the proceedings the applicant and his counsel requested the court to exclude the confession as being obtained under duress. Having questioned the police officers who had allegedly ill-treated the applicant, and having examined the forensic medical report of 13 August 2002 which revealed no traces of bodily harm, the court rejected this motion.

The jury found the applicant guilty as charged and on 30 June 2003 the Voronezh Regional Court sentenced him to twenty-one years ' imprisonment.

On 22 December 2003 the Supreme Court upheld the judgment with minor changes.

On 17 January 2006 the investigator of the Zheleznodorozhny District Prosecutor ' s Office, Voronezh, having examined the applicant ' s complaint of ill-treatment during the pre-trial investigation, refused to institute criminal proceedings against police officers on the ground that there was no evidence that an offence had been committed. On 9 March 2006 the District Deputy Prosecutor upheld this decision.

2. Conditions of the applicant ' s detention in Voronezh IZ–36/1 pre-trial detention facility ( ИЗ -36/1 г . Воронежа ).

From 13 August 2002 until 23 January 2004 the applicant was held in Voronezh IZ-36/1 pre-trial detention facility, in cells nos. 33, 80, 81, 86, 122 and 132.

In cell no. 86 applicant was kept with twenty-two other detainees, although the cell had only sixteen beds. In one corner there was a pail which served as a toilet and garbage can . The applicant asserts that the pail was not separated from the living area, and the stench from it was unbearable. The cells were seriously infested with insects and rats.

In cells nos. 80 and 81 there were four beds, the windows had no glass, i n winter the temperature was extremely l o w and in summer the cells were hot, stuffy and damp . The cells were infested with bugs and lice .

In cells nos. 122 and 132 there were twelve beds for nineteen and fifteen detainees, respectively, the windows had no glass, there was no heating and it was extremely cold in winter.

The detainees were not provided with bedding or eating utensils .

In September 2003 the applicant contracted scabies and was placed in the cell no. 33 together with ten other inmates with the same disease. Six of them were minors; the others had been sentenced to different confinement regimes: strict security and high security.

On 23 January 2004 the applicant was transferred to correctional colony OZh – 118/3 to serve his sentence.

3. The applicant ' s state of health and medical assistance

In August 2002 the applicant hurt his wrist. The wrist was bandaged and the applicant was given ointment . On 29 March 2004 an X-ray revealed a triple contracture of this wrist, and the applicant received treatment in the prison hospital, but wrist mobility was not restored.

In September 2002 the applicant had problems with urination and was diagnosed with prostatitis . He was told that he needed an operation to remove an adenoma; however it was not possible to have this operation whilst in pre-trial detention. The applicant was given injections. Upon his arrival in correctional colony OZh–118/3 he complained again about his adenoma. An examination revealed kidney problems and the applicant was given antibiotics (according to him they were date-expired); nonetheless he suffered painful urination.

In May 2004 the applicant was examined by surgeons who allegedly promised him an operation on the wrist and the adenoma. On 11 June 2004 the applicant was transferred to a prison hospital. According to his submissions, he was discharged from the hospital without having surgery.

The applicant complained to the Prosecutor ' s Office that he had not had the necessary medical care. In his reply of 24 October 2005, the prosecutor informed the applicant that surgery on his wrist and adenoma were considered unnecessary.

Throughout his detention in IZ–36/1 pre-trial detention facility the applicant contracted pediculosis (infection caused by lice) and fungal infections several times. Each time, prison doctors gave him necessary medicaments and the applicant apparently recovered.

COMPLAINTS

The applicant complain ed under Article 3 of the Convention that he had been held in appalling conditions in Voronezh IZ–36/1 pre-trial detention facility.

The applicant complained under Article 3 of the Convention that he had not had adequate medical assistance. In particular he stressed that he had contracted prostatitis and other diseases as a result of inhuman detention conditions, and had not been provided with the necessary treatment during the whole period of his detention. Furthermore, he had reduced wrist function due to untimely diagnosis and wrongful treatment.

He further complained under Articles 3 and 13 of the Convention that during his pre-trial detention he had been coerced into confessing and his numerous complaints in this respect had remained to no avail.

The applicant invoked Article 5 complaining that he was arrested and detained on remand in violation of its requirements.

The applicant also relied on Article 6 of the Convention, complaining that at the preliminary stage of investigation he had been questioned in the absence of his counsel, that the trial judge had admitted his confession had been obtained under duress, that the jury had misinterpreted the evidence and that the trial judge and the jury had been biased.

The applicant further complained under Article 4 of the Convention that he had had to do certain work in the prison. He finally relied on Article 17 of the Convention.

THE LAW

1. The applicant complain ed that he had been held in appalling conditions in Voronezh IZ–36/1 pre-trial detention facility and that he had not been provided with necessary and appropriate medical treatment. He invoked Article 3 of the Convention, which reads as follows:

“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 Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complained under Articles 3 and 13 of the Convention that during his pre-trial detention he had been forced to incriminate himself and his various complaints in this respect to the relevant authorities had been unsuccessful.

The Court notes that the applicant ' s complaint under Article 3 of ill-treatment during his pre-trial detention was raised in the domestic proceedings and the judge inquired into his submissions, summoned and examined the policemen who had allegedly forced the applicant to confess, and examined the forensic medical report. Having found no evidence of coercion, the Voronezh Regional Court dismissed the applicant ' s complaint. The Court further recalls that allegations of ill-treatment must be supported by appropriate evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 70 , ECHR 2005 ‑ I ) . In this respect it observes that the applicant has not produced any evidence in support of his allegations (such as medical certificates or statements by fellow detainees) and has thus failed to substantiate his claim that he was subjected to ill-treatment. Accordingly, the Court concludes that the applicant has not laid the basis of an arguable claim that he was ill-treated during his pre-trial detention . Furthermore, he failed to challenge the Prosecutor ' s Office ' s decision of 17 January 2006 not to institute criminal proceedings against the policemen before a court as he could have under Article 125 of the Code of Criminal Procedure of the Russian Federation , which was in force at the material time , and thus has not exhausted the available domestic remedies.

In so far as the applicant complains of a violation of Article 13 , the Court recalls that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Lasko and others v. Slovakia (dec.), no. 47237/99, 2 July 2002). It was open to the applicant to appeal against the decision of the Prosecutor ' s Office in accordance with a procedure prescribed by law.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

3. The applicant invoked Article 5 § 1 (c) of the Convention complaining about allegedly unlawful pre-trial detention.

The Court notes that the applicant was convicted by the first instance court on 30 June 2003 . Thereafter for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention and, consequently, ceased to have been detained pending investigation and trial under Article 5 § 1 (c) (see, mutatis mutandis , Daktaras v. Lithuania , no. 42095/98, 11 January 2000, ECHR 2000-X; and as a classic authority, Wemhoff v. Germany , judgment of 27 June 1968, Series A no. 7, p. 23, § 9). The application was lodged with the Court on 2 March 2004 , that was more than six months after the applicant ' s detention pending trial had ended, and no domestic remedies were being pursued which could have affected the relevant date for the purposes of Article 35 § 1 of the Convention.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant invoked Article 6 of the Convention, complaining that at the preliminary stage of investigation he had been questioned in the absence of his lawyer and that his confession obtained under duress had been admitted. He alleged that the jury had misinterpreted the evidence and that the trial judge and the jury had been biased.

The Court recalls at the outset that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not the function of this Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

Turning to the present case, the Court finds that t he applicant ' s conviction was based on a wide range of evidence, and following adversarial proceedings before the jury in the course of which t he applicant was represented by a lawyer of his choice and was given ampl e opportunity to state his case . Concerning the complaint about questioning in the absence of counsel, the Court notes that the application of Article 6 §§ 1 and 3 (c) to the preliminary investigation depends on the special features of the proceedings and particular circumstances of the case (see Brennan v. the United Kingdom , no. 39846/98, § 45, ECHR 2001 ‑ X). In the present case there is no evidence that the applicant, who had the statutory right to remain silent, ever requested to see counsel (see Latimer v. the United Kingdom , dec., no 12141/04, 31 May 2005). Furthermore, the applicant was represented shortly afterwards, and his interrogation without a lawyer during the preliminary stage of the proceedings did not deprive him of the opportunity of subsequently defending himself during the pre-trial investigation and trial (see Zhelezov v. Russia (dec.), no. 48040/99, 23 April 2002). Concerning the applicant ' s complaint that his confession had been obtained under duress and was subsequently used at the trial, the Court refers to its conclusion above that the applicant ' s allegations of ill-treatment are not made out, and also notes that the judge inquired into his submissions and found no evidence of coercion. Indeed, since the jury verdict contained no reasons, it is unclear what weight, if any, was given to the applicant ' s confession. However, both the applicant and his counsel had the opportunity to put forward in open court their version of events, adduce their evidence and contest the evidence submitted by the prosecution. Thus, in the absence of a substantiated claim that the confession was obtained as a result of ill-treatment, the mere fact that the applicant was initially questioned in the absence of his counsel and that the trial court admitted his confession was not such as to undermine the overall fairness of the trial. As to the applicant ' s allegations of bias, there is no evidence of any lack of impartiality on the part of the trial judge or the jurors. Furthermore, the applicant failed to make use of his right to challenge them.

The Court concludes, therefore, that it has not been shown that the trial was unfair. Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

5. The applicant also complained under Article 4 that he had had to work in the prison and thus had performed “forced or compulsory labour ”.

The Court recalls that Article 4 of the Convention explicitly permits under § 3 (a) “ any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention ”.

It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

6. The applicant finally alleged a violation of Article 17 of the Convention.

In the light of all the material in its possession, the Court finds nothing in the circumstances which can be considered to be a violation of this provision. This complaint is therefore unsubstantiated, and must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints concerning the conditions of his pre-trial detention facility in Voronezh IZ-36/1 and lack of adequate medical assistance throughout his detention ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Rait Maruste Registrar President