FIFTH SECTION

Application no . 47351/06 Yevgen Oleksandrovych TYMCHENKO against Ukraine lodged on 3 November 2006

STATEMENT OF FACTS

The applicant, Mr Yevg en Oleksandrovych Tymchenko , is a Ukrainian national who was born in 1977 and currently serves his prison sentence at the Ladyzhynska Correctional Colony. From October 2011 onwards the applicant has been represented in the proceedings before the Court by Mr M. Tarakhkalo , a lawyer practising in Kharkiv .

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

A. The applicant ’ s arrest and the alleged ill-treatment by the police

At about 10 p.m. on 17 August 2005 the applicant was arrested by the police on suspicion of robbery and murder. Subsequently, o n 17 and 18 August 2005 , the applicant was examined by medical experts who noted that the applicant had a number of abrasions on his head and body. According to a medical report drawn-up on the latter date, the applicant told the expert that he had obtained those injuries as he had been beaten up by unknown persons at about 9.30 p.m. on 17 August 2005.

According to the applicant, after his arrest he was tortured by the police officers and forced to confess that he had committed the crimes of which he had been suspected. During the first two days following his arrest the applicant had no access to a lawyer. Subsequently, a lawyer was appointed to him by the investigators. In January 2006 that lawyer was replaced by another lawyer who was hired by the applicant ’ s mother. The applicant states that the lawyers did not take part in the applicant ’ s questioning during which he made self-incriminating statements. The applicant also states that he had no regular contact with the lawyers.

During his questioning on 30 September 2005 and then on 13 February 2006 the applicant stated that he had only been a witness of the crimes and that the murders had been committed by other persons who had later forced him to sell the property belonging to the victims. The applicant indicated to the police those persons ’ first names and physical description. The police could not find those persons. During his questioning o n 13 February 2006 the applicant also complained that his previous self-incriminating statements had been extracted under torture. The prosecutors carried out an inquiry into those allegations and, by decision of 15 February 2006, reject ed them as unsubstantiated. The prosecutors relied mainly on the statements of the police officers concerned and noted that the applicant had not complained about the alleged ill-treatment at earlier stages of the proceedings. The applicant did not lodge with the courts an appeal against that decision. He raised his complaints of torture during his trial (see below).

B. The applicant ’ s detention

During the investigation and the court proceedings the applicant was detained initially at a police station in Kyiv and then , from 18 to 19 August 2005 at a police station in Sumy. On the latter date the applicant was taken to a police detention facility (“the ITT”) in Sumy , on 7 October 2005 to the pre-trial detention facility (“the SIZO”) in the same town , on 14 February 2007 to the SIZO in Kharkiv , on 13 March 2007 to the SIZO in Kyiv, on 1 April 2007 to the SIZO in Vinnytsya , and on 9 April 2007 to the Ladyzhynska Correctional Colony, in which he is currently detained. On several occasions between October 2005 and February 2006 the applicant was placed for short periods of time in the ITT so that he could take part in investigative actions.

The applicant states that the conditions of his detention at the ITT, the SIZOs in Sumy and in Kharkiv and the Correctional Colony were inhuman (overcrowded cells, poor sanitary and hygiene situation, lack of access to fresh air and natural light) and that he was often beaten up and otherwise ill ‑ treated by guards at the SIZO in Sumy and at the Correctional Colony, which included threats, excessive use of handcuffs and solitary confinement in disciplinary cells. While some of the applicant ’ s injuries were recorded by medical staff of the SIZO and the Correctional Colony, his medical examinations were allegedly perfunctory and he was not provided with adequate medical assistance in detention.

The applicant also states that the administration of the SIZOs and of the Correctional Colony did not give him the possibility to study legal texts, which prevented the applicant from effectively protecting his rights at the domestic level. According to the applicant, during his detention at the Sumy SIZO police officers visited him on a number of occasions trying to force him to maintain his initial self-incriminating statements.

On several occasions the applicant went on a hunger strike and attempted to commit suicide, for which he was punished by guards.

The applicant tried to have the complaints about his ill-treatment in detention examined by the domestic authorities, including the prosecutors and the courts dealing with the applicant ’ s criminal case. Many of those complaints were allegedly blocked by the administration of the SIZOs or ignored by those to whom they were addressed. The complaints, to which the applicant received replies, were not duly examined. In particular, by decision of 26 April 2007, the prosecutors refused to institute criminal investigation s into the applicant ’ s complaints about his ill-treatment at the Sumy SIZO, allegedly without having carried out a thorough and objective inquiry. The applicant challenged that decision before the courts of two judicial instances, which rejected the appeals as unsubstantiated. The final decision was adopted on 3 April 2008, a copy of which the applicant received on 10 April 2008. The applicant did not appeal to the Supreme Court, having considered that such an appeal would have been ineffective.

C. The applicant ’ s trial

Following the completion of the investigation, the applicant was tried by the Sumy Court of Appeal, acting as a court of first instance, which on 12 May 2006 convicted him of two counts of robbery and murder and sentenced him to life imprisonment with confiscation of all his property. The applicant ’ s conviction was based principally on his statements obtained at the pre-trial stage, a forensic report finding that blood stains on the victims ’ hands could belong to the applicant, and the statements of persons who had bought or otherwise received from the applicant objects previously belonging to the victims. Some of those statements were made at public hearings, while some of them were obtained during the investigation.

The court also held that the applicant ’ s allegations that his self ‑ incriminating statements had been obtained under torture were unsubstantiated. The court examined the material concerning the allegations and noted that the applican t had not raised them before 13 February 2006; in particular , during his questioning in the presence of his lawyer on 19 August 2005 the applicant had stated that he had not been forced to confess of having committed the crimes. The court also noted that the applicant had not appealed to the courts against the prosecutors ’ decision of 15 February 2006.

Both the applicant and his lawyer appealed against the conviction , arguing principally that the applicant ’ s guilt had not been proven (there had been no sufficient material evidence and the statements of the applicant and of the witnesses had been inconsistent) and that the conviction had been based on the applicant ’ s statements obtained under torture. They also argued that the court had not allowed the applicant ’ s requests to summon a witness who had been acquainted with the persons who had allegedly committed the crimes and that the court had not taken into account the statements of several witnesses who had allegedly seen those persons.

On 17 August 2006 the Supreme Court partly changed the reasoning of the verdict, having upheld, on the whole, the findings of the first-instance court and the applicant ’ s sentence. The Supreme Court noted that the applicant ’ s complaints of torture were unsubstantiated and that they had been rejected by the prosecutors ’ decision against which the applicant had failed to lodge an appeal. The Supreme Court also noted that the applicant ’ s allegation about other persons ’ responsibility for the crimes had been duly examined at the pre-trial stage and during the trial and that it was unsubstantiated.

D. The applicant ’ s complaints of hindrance of his right of application

In 2007 the Court invited the applicant to provide copies of his cassation appeal and of procedural documents concerning his complaints about a violation of Article 6 § 3 (c) and (d) of the Convention (see below). The applicant submitted a copy of his cassation appeal. He could not provide copies of other documents, as requests for such copies, made on his behalf by his mother and by the lawyer who had represented the applicant in the domestic proceedings, were refused by the Sumy Court of Appeal, which kept the case file, as not based on the law.

Subsequently, the applicant also requested the authorities to give him copies of documents concerning his detention at the ITT and the SIZOs and various other documents and video recordings from his criminal case file. Many of his requests remained without a reply. The requests, to which the applicant received replies from the authorities, were generally refused either for the absence of the required documents or on the ground that the domestic law did not provide for a procedure of convicts ’ access to documents in completed criminal cases.

The applicant unsuccessfully challenged the refusal to provide him with copies of documents before the domestic courts.

In June 2011 the Sumy Court of Appeal sent to the applicant copies of several documents from his case file, including some of the documents relating to the applicant ’ s arrest in August 2005 and records of the questioning of some of the witnesses at the pre-trial stage.

COMPLAINTS

Relying on Articles 2 and 3 of the Convention, the applicant complains that he was tortured by the police. The applicant also complains under Articles 3 and 13 of the Convention that no effective investigation was carried out into that complaint .

Relying on the same provisions of the Convention, t he applicant complains that the conditions of his detention at the Ladyzhynska Correctional Colony were inhuman and that he was ill-treated by guards of the Colony.

The applicant further complains that his criminal prosecution was unfair and that his conviction was based on false evidence and his self-incriminating statements obtained under torture. He further alleges that during the criminal proceedings contact with his lawyer was restricted and that the courts refused to summon w itnesses on his behalf. In that regard, the applicant relies on Article 6 §§ 1 and 3 (c) and (d) of the Convention.

The applicant complains under Article 34 of the Convention that the authorities have refused, for a considerable period of time, to provide him with the possibility to obtain copies of documents he needed for substantiation of the application. He also relies on Articles 3 and 8 of the Convention in that regard.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaint of ill-treatment by the police ?

2. Did the authorities carry out an effective investigation into the applicant ’ s complaint of ill-treatment by the police in accordance with Article 3 of the Convention?

3. Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention , having regard to his complaints concerning the conditions of detention and about his ill-treatment by guards at the Ladyzhynska Correctional Colony ?

4. Did the applicant have a fair hearing in the determination of the criminal charges against him ? In particular, having regard to the applicant ’ s complaints of unfair trial , did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

5. Has there been any hindrance by the State in the present case with the effe ctive exercise of the applicant ’ s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the opportunity to obtain copies of the documents from his case file and to send them to the Court in order to pursue the application?