Communicated on 3 July 2015

FIFTH SECTION

Application no. 28412/10 Mykola Anatoliyovych MELNYK against Ukraine lodged on 16 April 2010

STATEMENT OF FACTS

The applicant, Mr Mykola Anatoliyovych Melnyk , is a Ukrainian national who was born in 1965 and is currently serving a prison sentence in prison no. 35 in the Kyiv Region.

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, his detention and alleged ill-treatment

In the morning of 11 January 2007 the police detained the applicant on suspicion of robbery and brought him to the Desnyansky District Police Station of Kyiv. Police investigator V. asked the applicant whether he had been involved in the stealing of household appliances worth around 64,467 euros during the night from 7 to 8 January 2007. The applicant made a written statement denying his participation in the robbery. After that police officers K.A. and K.B. started beating the applicant putting pressure on him to confess of having in fact committed the robbery. The police beat the applicant with their fists, rubber sticks and other objects. They also hit his head against a wall and extinguished cigarettes on his body.

In the evening of 11 January 2007 the applicant, who was no longer able to stand the torture, wrote a confession that he had committed the robbery during the night from 7 to 8 January 2007.

On 12 January 2007 at 1 pm. investigator V. instituted criminal proceedings for robbery against the applicant.

On 15 January 2007 the Desnyansky District Court of Kyiv (“the District Court”) extended the applicant ’ s detention until 15 March 2007.

On 16 January 2007 a medical expert examined the applicant and found several big bruises and abrasions on his face and body. According to the expert ’ s report, those injuries might have been sustained on 11-12 January 2007 and had been inflicted by at least 12 impacts by blows by blunt objects.

On an unspecified date the applicant complained to the Desnyansky District Prosecutor ’ s Office about his ill-treatment by the police on 11 January 2007. The prosecutors questioned police officers K.A., K.B. and investigator V. who all stated that they had questioned the applicant on that date but denied the use of any physical force. On 15 March 2007 the prosecutors refused to institute a criminal investigation into the applicant ’ s complaint for lack of corpus delicti in the actions of police officers K.A., K.B. and investigator V.

During 2007-2011 the applicant repeatedly challenged that decision before higher prosecutors and before the courts but without success.

On an unspecified date the preliminary investigation in the applicant ’ s case was concluded and the case was submitted to the District Court for trial which began on 14 June 2007.

On 13 November 2007, 20 August 2008 and 21 January 2009 the District Court found itself unable to reach a conclusion on the applicant ’ s guilt based on the materials in his case-file and ordered the prosecutors to conduct additional investigation.

On 21 January 2009 the court also ordered the applicant ’ s release against an undertaking not to abscond.

On 30 April 2009 the District Court, having received the applicant ’ s criminal case from the prosecutors who had carried out the additional investigation, resumed the trial and ordered the applicant ’ s pre-trial detention on the ground that he was charged with serious crime and had “obstructed justice”. The court did not provide further details in this respect.

In a judgment of 16 July 2009 the District Court convicted the applicant of robbery and car hijacking and sentenced him to a ten-years ’ imprisonment with confiscation of all his property. The court in particular relied on the applicant ’ s written confession of 11 January 2007.

By the same decision the court rejected the applicant ’ s complaints of ill-treatment by the police on 11 January 2007 relying on the prosecutors ’ findings of 15 March 2007. The court did not make any inquiries and conclusion as to the origins of the injuries found on the applicant on 16 January 2007.

The applicant appealed against the judgment of 16 July 2009, complaining, in particular, that his confessions of 11 January 2007 had been extracted under duress.

On 11 November 2009 the Kyiv Court of Appeal upheld the applicant ’ s conviction and sentence finding at the same time, on the basis of the prosecutors ’ decision of 15 March 2007, that his complaints of police duress were unsubstantiated.

The applicant and his representative lodged two separate appeals in cassation arguing that the applicant ’ s conviction was based on the confessions extracted from him under duress on 11 January 2007.

On 24 December 2009 and 8 February 2010 respectively, the Supreme Court rejected the appeals in cassation and upheld the applicant ’ s conviction and sentence. It also rejected the complaints of ill-treatment on 11 January 2007 referring to the decision of 15 March 2007.

On 7 July 2011 the applicant ’ s lawyer requested an extraordinary review of the applicant ’ s case. No further developments in this respect are known to the Court.

2. Conditions of the applicant ’ s detention

On 25 November 2009 the applicant was transferred to the prison no. 71 to serve his sentence. The conditions of detention there were very poor, he was held in overcrowded, poorly ventilated cells infested with pests and with inmates suffering from infectious diseases. The food was inadequate.

On 13 July 2010 the applicant was moved to prison no. 73 where the conditions of detention were also poor. In particular, the prison food “looked and tasted disgusting”. In the dormitory where the applicant lived each inmate had only 2 square meters of personal space, due to overcrowding and insufficient ventilation; it was always hot and stuffy. The water tubs and toilets where located in a separate building far from the dormitory. There were only 10 functioning water tubs for 300 detainees, the toilets did not have a water supply and were dirty. The hot water was not available during the summer and autumn seasons. Inmates had access to running water for only 2-3 hours a day, and that water was dirty. The applicant ’ s co-inmates threatened him and extorted money from him.

On 17 October 2010 the applicant was transferred to prison no. 35 where he currently remains. The conditions of detention are even worse than those in prison no. 73. In particular, food is of poor quality, there is no refrigerator to keep the food which the applicant receives from his wife. He lives in a dormitory where the electricity is available for only 5 hours per day and living space per inmate is less than 3 square meters. The applicant ’ s inmates extort money from him, and he is frequently in contact with inmates who suffer from TB. The premises where he works and lives are “noisy, poorly lit and dusty”. After his arrival to prison no. 35 the applicant contracted a fungus infection ( «паховий грибок» ) , but a prison doctor did not note this in his medical record and refuses to provide him with appropriate treatment. The applicant applies anti-fungal lotion which he receives from his wife.

COMPLAINTS

1. The applicant makes a number of complaints under Article 3 of the Convention. In particular he complains that: a) on 11 January 2007 police officers K.A. and K.B. ill-treated him; b) his complaint concerning that ill-treatment was not duly examined by the authorities; c) his conditions of detention in the prisons nos. 71, 73 and 35 amounted to torture; d) prison no. 35 provides no medical treatment for his fungus infection.

2. The applicant also complains under Article 13 of the Convention that he did not have an effective remedy for his complaints under Article 3 of the Convention.

3. The applicant complains under Article 6 of the Convention that his conviction was based on the confessi on extracted under duress on 11 January 2007. He also complains that the courts dealing with his case were biased.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention on 11 January 2007?

2. Having regard to the procedur al protection from torture (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation conducted into the applicant ’ s allegations of ill-treatment on 11 January 2007 in breach of Article 3 of the Convention?

3. Have the conditions of the applicant ’ s detention in prisons nos. 71, 73 and 35 complied with the requirements of Article 3 of the Convention?

4. Did the applicant receive adequate medical treatment in compliance with Article 3 of the Convention?

5. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

6. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Arti cle 6 § 1 of the Convention? In particular, ( i ) was there a violation of his right not to incriminate himself; and (ii) were the courts which dealt with the case impartial, as required by Article 6 § 1 of the Convention?