FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18660/03 by Valeriy Vladimirovich MALENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 22 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Valeriy Vladimirovich Malenko , is a Ukrainian national who was born in 1961 and is currently serving his sentence in Dykanivska Penitentiary no. 12, in the Kharkiv region .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

The applicant alleges that on 14 April 1999 he was arrested by the police and taken to the Mariupol Town Police Station. There the police asked him to admit that he had been involved in the murder of two persons. When he refused to do so he was allegedly subjected to ill-treatment, after which he admitted that he and a Mr N. had assaulted and killed the victims. Describing his participation in this offence the applicant allegedly confessed to having kicked one of the victims unconscious and stabbed both victims several times with a fork.

The applicant states that on 15 April 1999 he signed a confession statement and participated in a search of his home by the police.

According to the official records the applicant was arrested on 16 April 1999. On this day he was questioned by an investigator from the prosecutor ’ s office, appointed to this case. The applicant, who was represented by a legal aid lawyer, admitted having assaulted the victims, without, however, stating that he had stabbed them with a fork. After this interrogation the applicant was taken to the local prosecutor, who ordered his detention on remand for two months.

The applicant, represented by an appointed lawyer, confirmed his confession during a second interview on 19 April 1999 and the crime-scene reconstruction, which was conducted on an unspecified date in April 1999.

Subsequently, on an unknown date during the pre-trial investigation, the applicant changed his statements, alleging that he had attacked one of the victims in response to the victim having verbally abused and punched him. At his last pre-trial interrogation by the investigator the applicant confirmed that he had been assaulted by the victim but denied having inflicted any injuries to the deceased.

During the pre-trial proceedings the applicant ’ s alleged accomplice Mr N. stated that the applicant had assaulted one of the victims, pushed him to the ground and kicked him unconscious. Then, according to Mr. N., the applicant had helped him to kill the victims by stabbing them with a fork.

On an unknown date the applicant was committed to stand trial for murder. The prosecution service considered that the applicant ’ s guilt was sufficiently proven by his own statements during the pre-trial proceedings, the statements of Mr. N and the evidence of a police officer, who had arrested the applicant. The latter witness stated that murder weapons (the fork and a screwdriver), had been found with the applicant at his arrest and the jacket he had been wearing at that time was covered with bloodstains.

During the hearings before the Donetsk Regional Court the applicant, while confirming that he had been present at the scene when the murder was being committed by his co-defendant, retracted his statement concerning his involvement in this offence as having been made under duress. Mr N. admitted murder, but stated that he did not remember if the applicant had participated in the killing of the victims or not.

The applicant stated that on an unidentified date before May 2000 the prosecutor shared certain information from the criminal case-file against the applicant with a journalist from the local newspaper “ Tyurma i Volia ”. The journalist subsequently wrote an article describing the applicant as a criminal.

On 24 May 2000 the Donetsk Regional Court convicted the applicant of murder and sentenced him to eleven years ’ imprisonment with deduction of the time spent in detention on remand from 16 April 1999. The applicant, his lawyer and the prosecutor appealed in cassation.

On 12 April 2001 the Supreme Court quashed the judgment of 24 May 2000 in the part concerning the applicant, on the ground that the trial court had given him an excessively lenient sentence.

During the second set of trial proceedings Mr N. changed his evidence, stating that he remembered that the applicant had not participated in the murder.

On an unidentified date before April 2002 the applicant requested that his partner be heard as a witness. He stated that she could prove that on the date of the offence he had worn another jacket than that in which he was arrested by the police. The trial court rejected this request.

On 17 April 2002 the Donetsk Regional Court of Appeal (the Donetsk Regional Court as renamed on 29 June 2001), following an adversarial trial, found the applicant guilty of murdering two persons, an offence defined in Article 93 of the Criminal Code 1961, and sentenced him to fifteen years ’ imprisonment with deduction of the time spent on remand in custody.

In its judgment the Court of Appeal acknowledged that the applicant in his confused statements had never fully admitted having killed any of the victims. The Court of Appeal next found the new evidence of Mr N. unreliable and convicted the applicant on the basis of other evidence which was before it, such as the statements of Mr N. given at the pre-trial stage of proceedings and the evidence of the police officer.

The applicant appealed in cassation, contending, inter alia , that the trial court had unfairly refused to hear his partner as a witness and that his appointed lawyer had failed to provide an effective defence. The issue of the article in the “ Tyurma i Volia ” newspaper was not mentioned in his appeal.

On 21 November 2002 the Supreme Court, in a public hearing held in the presence of the applicant and a prosec utor, upheld the judgment of 17 April 2002.

2. The applicant ’ s detention

After his arrest on 14 April 1999 until his official dete ntion on 16 April 1999 the applicant was allegedly held in the Mariupol Town Police Station in a cell with poor sanitary conditions.

From 16 April 1999 to 5 February 2003 the applicant was detained in the Mariupol Pre-trial Detention Centre (hereafter “the Mariupol SIZO”). According to the applicant his cell was not properly ventilated with fresh air and he did not have access to daylight . Moreover it was constantly overcrowded, so that three persons occupied one bench and had to sl eep taking turns . The food supply and medical treatment was inadequate, in particular in view of the fact that in April 2000 he contracted tuberculosis.

On 21 February 2003 the applicant arrived at the Sokirianska Penitentiary no. 67 where he stayed until an unknown date between 11 November 2004 and 14 April 2005 when he was transferred to the Dykanivska Penitentiary no. 12 (Kharkiv region) with a less strict regime. The applicant alleged that during his detention in Penitentiary no. 67 he suffered from the poor medical care and food supply, inappropriate in view of his health problems, and from the dampness of his cell.

As regards Penitentiary no. 12, where the applicant is currently held, he states that his cell is lit by a murky electric lamp and dim daylight, restricted by glass blocks. This has led to the deterioration of his sight. However, despite his request to this effect, the applicant has not been examined by an ophthalmologist. Moreover, despite the tuberculosis which he contracted in the Mariupol SIZO, for a year and a half he has not been provided with any medical care for this disease.

The mandatory ventilation in his cell is not available and the window does not open because of metal bars attached to it. The lack of adequate ventilation is further aggravated by a general tolerance to smoking in the cell and outside during the walks.

The applicant is employed at the prison factory. He alleges that on his way to his working place and back he is strip searched in the presence of other inmates. He states that these searches are conducted in premises unequipped for this purpose.

The applicant on several occasions requested the competent authorities to be transferred to a prison in the Donetsk region, where all the members of his family live. By a letter of 28 March 2006 the Head of the State Prison Department informed him that persons convicted of aggravated murder as a rule serve their sentences outside the regions where they have committed their offences.

The applicant states that on several occasions the prison authorities restricted his contacts with his family by reducing the time of the visits from the originally authorised three to two days. The authorities also allegedly intercepted some of the applicant ’ s letters to his relatives and their letters to him.

COMPLAINTS

1. The a pplicant complained under Article 3 of the Convention that he had been ill-treated during his custody in the Mariupol Town Police Station. He also complained that the conditions of his detention in the Mariupol SIZO and Penitentiaries nos. 67 and 12 amounted to inhuman and degrading treatment and punishment.

2. The applicant complained under Article 5 of the Convention that he had been arrested and, until 16 April 1999, detained unlawfully. He also complained that his detention on remand had been unreasonably long.

3. Relying on Article 6 of the Convention the applicant complained that he had been denied fair trial. In this respect he contended that during the pre-trial proceedings the prosecutor had disclosed information about him to a journalist of the local newspaper “ Tyurma i Volia ”, which resulted in an article describing him as a criminal. He also complained under Article 6 that the trial judges had lacked impartiality, that the courts had erroneously assessed the evidence before them and that the trial court had refused his request to hear an additional witness. The applicant also complained that the lawyer appointed by the authorities to represent him had conducted an ineffective defence.

4. The applicant complained that he had been convicted under the new Criminal Code 2001, which provided a more severe penalty for the murder of two persons. He invoked in this respect Article 7 of the Convention.

5. Referring to Article 13 of the Convention the applicant complained that the Prosecutor of the Donetsk Region had unreasonably refused to act upon his complaints about his unfair conviction.

6 . The applicants complained, finally, of an allegedly disproportionate interference with his family life by the prison authorities. He referred in this respect to the alleged interception of his correspondence. He also complained that his family experienced certain difficulties in visiting him in Penitentiary no. 12, which is situated far from their place of residence. I t is difficult for them to afford the bus or train fares and the authorities unlawfully restrict the time allowed for their infrequent visits.

THE LAW

A. Conditions of the applicant ’ s detention in various detention centres

The applicant complained of the conditions of his detention in the Mariupol SIZO and Penitentiaries nos. 67 and 12. He invokes 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, de termine the admissibility of this complaint 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.

B. Remainder of the complaints

The Court has examined the remainder of the applicant s ’ complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints about the conditions of detention (Article 3) ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President