FIFTH SECTION

Application no. 34697/04 Yuriy Mikhaylovich DOLGIKH against Ukraine lodged on 10 September 2004

STATEMENT OF FACTS

The applicant, Mr Yuriy Mikhailovich Dolgikh , is a Ukrainian national who was born in 1974 and is currently serving a prison sentence in the Berdychiv Correctional Colony No. 70 (“the priso n”). He is represented by Ms Y. Zaikina , a lawyer practicing in Kharkiv .

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

A. The applicant ’ s prosecution

Between 1995 and 1999 a number of crimes were committed in the Donetsk oblast by a gang, including multiple counts of murder, rape, robbery and theft.

In the course of criminal investigations into the crimes the authorities identified the applicant as a member of the gang.

On 16 and 18 February 1999 the police searched the applicant ’ s and his mother ’ s flats, during which they seized objects belonging to the applicant, his mother and other people. The applicant alleges that the objects were not returned to their owners. He further alleges that the police unlawfully seized some of his personal belongings without listing them in the report on the search. In this regard, he refers to his requests for return of a photo album which were refused by the authorities as there was no evidence that the photo album had been seized during the searches (see below).

Meanwhile, several people were arrested on suspicion of being members of the same gang. According to the applicant, during their questioning by the investigators the arrested people made self-incriminating statements under torture. Those statements also implicated the applicant.

One of the arrested people died on 18 February 1999 while in police custody. The applicant alleges that that person was murdered by unspecified police officers. An official report on that person ’ s death noted that he had died of “mechanical asphyxia” which he could have caused himself, and that his body had numerous injuries, including broken ribs, haematomas and bruises on the head.

On 20 February 1999 the applicant was arrested by the police and taken to the Police Temporary Detention Centre (“the ITT”) in Dnipropetrovsk . A report on his arrest was drawn up two days later. In the report it was noted that the applicant had been arrested on 21 February 1999 and that the reason for his arrest had been to prevent his fleeing or hindering prosecution. It was also noted that the applicant had stated that he and severa l other people “had attacked Mr Kh .” On 2 August 2002, while the applicant ’ s criminal case was pending before the Supreme Court, the applicant complained to the prosecutors about the unlawfulness of his arrest on 20 February 1999. The prosecutors referred his complaint to the Supreme Court, though that court did not deal with it (see below).

On 21 February 1999 the applicant was taken to the ITT in Makiyivka .

According to the applicant, from 20 to 22 February 1999 he was tortured by the police, which included beatings, strangling and threatening with murder. As a result, the applicant confessed to having committed the crimes of which he was later convicted.

On 22 February 1999 the applicant was questioned in the presence of a lawyer, Mr K., appointed to him by the police. The applicant alleges that the lawyer did not take part in a number of subsequent investigative actions. In particular the applicant refers to the reconstruction of events related to one of the charges at which the lawyer was not present.

During the applicant ’ s detention from 22 February to 4 March 1999 in the ITT he was handcuffed at all times with two thirty-minute breaks for food and toilet. Subsequently, the applicant was transferred to the Investigative Detention Centre (“the SIZO”) in Donetsk .

According to the applicant, in February-March 1999 information concerning his criminal case was published in the press.

In August 1999 the applicant was allegedly forced by the investigator to draw up a new statement in which the applicant confessed of the crimes of which he was suspected. The applicant states that unspecified guards from the SIZO helped the investigator to put pressure on the applicant. The applicant does not provide further details in that respect.

On 31 March 2000 the investigation was completed; the applicant and his co-defendants were allowed to study the case file. The applicant states that he had not been given an opportunity to study a number of essential documents eventually used as evidence in his trial, including experts ’ reports and verbatim records of questioning. The applicant states that on 31 May 2000 the investigator terminated the applicant ’ s studying the case file although he did not complete it.

According to the applicant, while studying the case file he noted a number of inconsistencies in particular in the experts ’ reports. He requested the investigators to put questions to the experts and to order additional expert examinations. However, the applicant ’ s requests remained without a reply. The applicant does not provide details in that respect.

On an unspecified date the case was referred to the Donetsk Court of Appeal for trial.

During the trial the applicant confirmed that he had committed some of the crimes of which he had been accused, though he denied the trustworthiness of his self-incriminating statements in February 1999 alleging that they had been obtained under torture and ill-treatment to which he had been subjected on 20 February 1999 and during the ten days which had followed his arrest. Some of the applicant ’ s co-defendants also made similar submissions concerning their own statements.

The applicant submits that some of his statements during the trial were incorrectly recorded in the court documents.

On 21 August 2001 the Donetsk Court of Appeal found that the applicant and seven other people had belonged to a gang and had been guilty of a number of serious crimes which they had committed between 1995 and 1999, including several counts of aggravated murder, rape, robbery, theft and unlawful possession of arms. The applicant was sentenced to life imprisonment with confiscation of all his property.

In its judgment the Court of Appeal relied on various pieces of evidence, including the information obtained during the searches, experts ’ reports, statements of witnesses and statements of the defendants obtained during the investigation and trial. The court noted that the defendants ’ allegations that their self-incriminating statements at the investigation stage had been obtained under torture were groundless. In particular, as regards the applicant, the court noted that his medical examination had not revealed any injuries on his body and that a police officer, who had been questioned concerning those allegations during the trial, had denied any violence against the defendants.

In September 2001 the applicant requested the Court of Appeal to replace Mr K. by another lawyer, alleging that Mr K. did not “care” about the outcome of the case. According to the applicant, his request remained without a reply.

In December 2001 the applicant appealed in cassation mainly challenging the factual findings and the application of the criminal law by the Court of Appeal. The applicant also complained that his right to defence had been violated in that his lawyer had not taken part in one of the investigative actions (crime scene reconstruction) and that the lawyer had not come to visit him in detention for over three moths after the applicant ’ s conviction. The applicant alleged that he had been subjected to ill-treatment by the police in February 1999. The applicant stated that he had not raised the complaints about his ill-treatment at the investigation stage because the investigator had told him that those matters would be dealt with at the trial. The applicant also submitted that many of the documents in the file had been forged and that he had not been given a possibility to familiarise himself with experts ’ reports, which he did not specify.

The applicant states that for about a year after the conviction he did not communicate with Mr K. and was not allowed studying the entire case file. When the applicant repeatedly requested the Court of Appeal to allow him to meet with his lawyer in the SIZO, the applicant received a reply from a judge of that court that “the current legislation did not provide for participation of a lawyer when studying verbatim records of court hearings in the SIZO”. The judge also noted that the applicant ’ s refusal to familiarise himself with the verbatim records of the hearings before the Court of Appeal would be apprised as his refusal to familiarise with the case file.

On 11 November 2002 the applicant submitted a separate complaint to the Supreme Court, stating that his sentence was unlawful, as at the time when he had committed the crimes there had been no such punishment as life imprisonment, which had been introduced by the Act of the Parliament on 22 February 2000.

In October 2003 the applicant started familiarising himself with the case material which was brought to him by a clerk from the Court of Appeal. According to the applicant, as the clerk brought the case material not in order of sequence, the applicant refused to study one of the volumes of the case. The applicant ’ s refusal was used as a ground for the Court of Appeal to set, by a procedural decision of 1 December 2003, a schedule for studying the case file. According to the applicant, the time he was given by the Court of Appeal (20 days in total) was not sufficient to complete studying the file, which consisted of 40 volumes with 300-500 pages each. On 4 and 8 December 2003 the applicant asked the Court of Appeal to reconsider the decision of 1 December 2003.

On 29 March 2004 the Court of Appeal decided to terminate the applicant ’ s studying the case file, noting that the applicant had not complied with the schedule set by the court on 1 December 2003 and that he had not wished to review the video recordings and the verbatim records of court hearings included in the file. The applicant challenged the decision before the same court, stating that he had not completed studying the case file, but to no avail.

On 24 May 2004 the applicant amended his appeal in cassation. In particular, he alleged that the information contained in the case file was inconsistent and referred to specific documents, which included experts ’ reports and records of investigative actions. The applicant also stated that “the majority of investigative actions had been performed without participation of a lawyer” and referred to the procedural events in which his co-defendants ’ lawyers had not taken part. The applicant alleged that at the stage of investigation he had not been allowed to put questions to experts and that his requests for additional expert examinations had remained without a reply; that some of the material evidence had not been properly seized; that one of the people who had been arrested in connection with the same crimes had died in the hands of the police in February 1999; that between 22 August 2001 and 22 May 2004 his requests to meet with his lawyer in order to prepare an appeal in cassation had been ignored; and that the applicant had been unlawfully and groundlessly denied the possibility to study the case file after his conviction. The applicant also argued that his sentence was unlawful, as at the time when he had committed the crimes there had been no such punishment as life imprisonment, which had been introduced by an Act of the Parliament on 22 February 2000.

Between June and August 2004 the applicant made further submissions on his case, stating in particular that his conviction had been based on the unlawfully obtained evidence, including the statements of the accused obtained under police torture, and that his sentence had been unlawful.

On 19 August 2004 the Supreme Court heard the case in the applicant ’ s and one of his co-defendants ’ presence; a prosecutor was also present. The Supreme Court upheld the judgment of 21 August 2001, having changed the legal qualification of some of the applicant ’ s and one of his co-defendants ’ criminal actions. As to the remaining part of the case, the Supreme Court found no violation of substantive or procedural law. As regards the applicant ’ s allegations of torture by the police, the Supreme Court noted that those allegations had been checked by the Court of Appeal with the findings of which, that the allegations were unfounded, the Supreme Court agreed.

B. Post-conviction developments

In December 2005 the applicant ’ s flat was sold to third parties in the framework of the execution of the judgment of the Court of Appeal of 21 August 2001. The applicant did not challenge the lawfulness of the sale before the courts.

In 2008 the applicant and his mother complained to the prosecutors about the unlawfulness of the searches in their flats in February 1999 and about the failure of the police to return their items which had been seized during the searches, in particular photo albums. The prosecutors refused to take action, noting that similar complaints had already been dealt with and rejected as unsubstantiated, providing no further details. The prosecutors also noted that there was no information that the photo albums had been seized during the searches.

In 2009 and 2010 the applicant and his mother lodged a large number of complaints mainly with the prosecutors and the courts alleging that the applicant ’ s prosecution and conviction in 2001 was unlawful and unfair. The authorities did not find grounds to look into the merits of those complaints.

The applicant asked the prison authorities to make a request to the courts to bring his sentence in compliance with the law. By a letter of 9 April 2009, the Governor of the prison informed the applicant that there were no grounds for the requested action.

On 27 May 2010 the applicant ’ s sister complained to the prosecutors that the applicant ’ s arrest on 20 February 1999 had been unlawful. On 3 June 2010 the prosecutors issued a decision refusing to start criminal investigation into the complaint. On 23 October 2011 that decision was quashed and the complaint was remitted to the prosecutors for re-examination, the outcome of which is unknown.

On an unspecified date the applicant complained to the prosecutors about his ill-treatment in February 1999. By a decision of 3 June 2010, the prosecutors rejected the applicant ’ s complaints as unsubstantiated. On 23 October 2011 that decision was annulled and a new inquiry into the matter was ordered. The applicant does not inform of any development in that regard.

C. The applicant ’ s detention in prison

On 27 June 2005 the applicant was transferred from the SIZO to prison to serve his sentence.

According to the applicant, he was threatened and insulted by the staff of the prison; he was placed in overcrowded cells (10 sq. m. for 8 persons) with poor sanitary and hygienic conditions (no ventilation, no drinking water and no adequate conditions to store food); his correspondence was intercepted, screened and censored by the prison staff; and he was not allowed to meet with a lawyer.

The applicant also states that as a prisoner sentenced to life imprisonment he has not been entitled to have “long-term” (lasting for up to three days) family visits, in contrast to women sentenced for life, that he was entitled to have only “short-term” (lasting for up to four hours) family visits no more than once every six months, and that the meetings with his mother who was visiting him were held in the presence of prison guards.

In 2008-2011 the applicant lodged with various authorities, including prosecutors and courts, a number of complaints against the prison administration and the State Prison Department alleging that they had failed to ensure adequate conditions of his detention in the prison and violated the applicant ’ s rights to respect for his correspondence and to family visits.

The courts refused to examine the applicant ’ s complaints on the merits for incompliance with procedural requirements or for lack of jurisdiction. In particular, the courts found that the applicant ’ s complaints concerning the alleged interference with his correspondence were to be dealt with in accordance with the procedure set by the Code of Criminal Procedure.

The prison authorities and prosecutors, dealing with the applicant ’ s other complaints about the conditions of his detention, noted that the applicant had obtained adequate medical assistance when he had required it, that he had been allowed to have “short-term” meetings with his family in accordance with the law, that he had met with a lawyer on 4 March 2009, that all correspondence of prisoners were subjected to review, excluding letters to and from the European Court of Human Rights, other international organisations of which Ukraine was a member, the Ukrainian Parliamentary Ombudsman and prosecutors. No abuse or violations were found on the part of the prison staff.

D. The application to the Court

On 9 September 2004 the applicant sent a letter to the Court intending to lodge an official application against Ukraine . That letter and the applicant ’ s subsequent letters sent to the Court in 2004-2007 were accompanied by covering letters from the SIZO and later from the prison administration briefly summarising the nature of the correspondence dispatched.

According to the applicant, the administration of the SIZO also screened the letters sent to him by the Court and, for an unspecified period of time, the administration of the prison did not allow him to make or to keep copies of the letters sent to him by the domestic authorities and by the Court

In 2004-2007 the Court invited the applicant to submit copies of various documents from the domestic case-file, including the courts ’ decisions, his appeals and documents relating to the applicant ’ s complaints under Article 3 of the Convention. The applicant ’ s requests for such copies were often refused by the prison authorities and the domestic courts mainly for the reason of absence of legal provisions entitling the applicant to receive such copies. However, as time passed, the applicant obtained copies of many of the requested documents (he was either allowed to make a copy by hand or was given a printed copy) and submitted them to the Court. In particular, in 2007 the applicant was allowed to make a copy of the report on his arrest dated 22 February 1999 by hand.

E. Judgment of the Constitutional Court

On 26 January 2011 the Constitutional Court delivered a judgment giving an official interpretation of the provisions by which the criminal sanction of death had been replaced by life imprisonment in February 2000. The applicant alleges that the judgment permitted retroactive application of criminal sanctions and was contrary to the relevant provisions of the Criminal Code, the Constitutional Court ’ s judgment of 9 February 1999 and the practice of the Supreme Court in related cases.

COMPLAINTS

In his initial submissions the applicant raises a number of complaints relating to his criminal prosecution.

In particular, the applicant complains that he was tortured by the police from 20 to 22 February 1999 and that he was subjected to ill-treatment from 22 February to 4 March 1999. According to him, no domestic investigation was carried out into those complaints.

The applicant further complains that the report on his arrest contained untruthful information – the police failed to mention that the applicant had been arrested on 20 February 1999 and the reasons given for the arrest had no factual basis.

The applicant also complains that his prosecution was based on forged material and illegally obtained evidence and that some of the investigative actions were carried out without the applicant having been assisted by a lawyer. The applicant also states that during the criminal proceedings he was not given sufficient opportunity to study the domestic case file; in particular, he could not study the minutes of the Donestk Court of Appeal hearings. The applicant complains that his sentence was unlawful, as at the time when he had committed the crimes there had been no such punishment as life imprisonment. The applicant alleges that the publications concerning his criminal case before the trial commenced had been contrary to the principle of impartiality of justice.

The applicant complains that the police failed to return the objects seized during the search in his flat to their lawful owners. In particular, he states that he could not receive his photo album back.

For the above complaints the app licant invokes Articles 1, 3, 5 §§ 1 (c) and 3, 6 §§ 1, 2 and 3 (d), 7, 8, 10 and 13 of the Convention and Article 1 of Protocol No. 1.

In his submissions on 12 July 2008 the applicant complains about the allegedly unlawful confiscation and subsequent sale of his flat.

The applicant also complains that after the completion of the criminal proceedings he continued to be subjected to ill-treatment, torture and inhuman conditions of detention; that he was not provided with adequate medical assistance; that he was not allowed to meet with a lawyer; and that the authorities refused to investigate his complaints and to punish the alleged offenders; and that his correspondence was intercepted and monitored.

In his submissions in 2008 and 2009 the applicant complains about the restrictions on his family visits in the SIZO and the prison. He invokes Article 8 of the Convention in this regard.

The appl icant complains under Article 6 § 1 of the Convention about the unfairness and outcome of the proceedings before the administrative courts. In particular the applicant alleges that he was not provided with legal assistance.

Relying on the same provision of the Convention, the applicant complains about the unlawfulness of the judgment of the Constitutional Court of 26 January 2011.

Relying on Articles 10 and 34 of the Convention, the applicant complains that for a considerable period of time the authorities refused either to give him access to his domestic case file so that he could have obtained copies of documents for substantiation of the application or to provide him with such copies.

The applicant further complains under Article 34 of the Convention about the screening of the letters sent to him by the Court and his inability to make or to keep copies of the letters sent to him by the domestic authorities and by the Court.

The applicant complains that in the course of the criminal proceedings against him the rights of other people, including his mother and co-defendants, were violated by the authorities. The applicant also alleges that an unknown cellmate was beaten up in April 2008 by the prison guards.

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 complaints that he was tortured by the police from 20 to 22 February 1999 and that he was subjected to ill-treatment from 22 February to 4 March 1999?

2. Did the domestic authorities conduct an effective investigation into those complaints, as required by Article 3 of the Convention?

3. Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints about the conditions of his detention in the prison?

4. Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention, during the proceedings before the Supreme Court?

5. Was the applicant afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention, during the proceedings before the Supreme Court? In particular, did the interests of justice require such assistance?

6. Has there been a violation of the applicant ’ s right to respect for his correspondence, contrary to Article 8 of the Convention, having regard to his allegations of interception and monitoring of his correspondence by the prison administration?

7. Has there been a violation of the applicant ’ s right to respect for his private and family life, contrary to Article 8 of the Convention, having regard to the limitations on family visits during his post-conviction detention?

8. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 3 and 8, as required by Article 13 of the Convention?

9. Has there been any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of application, ensured 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 his application? Has the applicant ’ s communication with the Court been monitored by the authorities? Was the applicant allowed to make or to keep copies of those letters and of the letters sent to him by the domestic authorities?