FIFTH SECTION

Application no. 7001/06 Gennadiy Dmitriyevich BABIY against Ukraine lodged on 26 January 2006

STATEMENT OF FACTS

The applicant, Mr Gennadiy Dmitriyevich Babiy , was a Ukrainian national. He was born in 1963 and died in 2007. By letter of 23 March 2011 the applicant ’ s daughter, Ms Irina Babiy , expressed her wish to maintain his application.

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

A. Criminal proceedings against the applicant

1. First set of proceedings

Between 7 November 2000 and 22 September 2004 the applicant was in pre-trial detention. He was accused of being a member of a criminal gang.

On 22 September 2004 the Odessa Regional Court of Appeal adopted a decision which concerned eleven co-accused and twenty different episodes of murders, kidnappings, robberies etc. The applicant was not accused of direct participation in any of these episodes but of being in charge of relations between the criminal gang and other criminal entities as well as with law-enforcement bodies. He was also allegedly a gang treasurer. Nine of the applicant ’ s accomplices were sentenced to various terms of imprisonment. The applicant was acquitted as the accusations against him were found to be unsubstantiated. This decision was upheld on 18 April 2006 by the Supreme Court of Ukraine.

2. Second set of proceedings

Between June and November 2005 the General Prosecutor ’ s Office of Ukraine instituted several sets of criminal proceedings against the applicant and other persons for unlawful possession of firearms and participation in a criminal gang.

On 31 October 2005 the applicant was arrested.

On 3 November 2005 the applicant was charged with organising an attack on a casino. This episode was not among those considered by the court in the first set of criminal proceedings against the applicant.

On the same day the Prymorskyy District Court of Odessa placed the applicant into pre-trial detention. The court held that the applicant had been constantly changing his place of residence, therefore, if at large, the applicant could escape and hinder investigation.

On 9 November 2005 the Odessa Regional Court of Appeal upheld this decision. The court noted that the applicant had been accused of committing a serious crime, could escape and hinder the investigation.

On 1 March 2006 the applicant was allegedly released and arrested again upon suspicion of an assault on A. and S. It was noted that witnesses had recognised the applicant as a person who had committed the above crime.

On 2 March 2006 the Odessa Regional Court of Appeal prolonged the applicant ’ s pre-trial detention referring to both episodes of attack on a casino and of an assault on A. and S.

On 6 July 2006 the Supreme Court of Ukraine prolonged the applicant ’ s pre-trial detention until 30 April 2007.

On 2 August 2006 the applicant was charged with kidnapping and banditism .

On 2 April 2007 the Odessa Regional Court of Appeal prolonged the applicant ’ s pre-trial detention until 16 September 2007.

B. Medical assistance in detention

In 2001 the applicant was recorded as falling into the second category of disability on account of his hypertension disease. In 2003 he was diagnosed with a spine disease.

On 26 July 2002 the Prymorskyy Local Court following the applicant ’ s complaint decided that the applicant should be placed to a cardiology hospital department. On 12 November 2002 the Odessa Regional Court of Appeal quashed this decision and remitted the case for a fresh consideration to the first instance court. On 16 December 2002 the Prymorskyy Local Court terminated the proceedings since examination of such issues felt outside the courts ’ competence. On 6 March 2003 that decision was upheld by the Odessa Regional Court of Appeal.

On 10 December 2003 the Odessa Regional Court of Appeal in the course of the criminal proceedings against the applicant ordered that he should be provided with medical assistance.

On 21 March 2005 the Supreme Court of Ukraine upheld the decision of 12 November 2002.

Since 10 March 2006 the applicant was detained in the Odessa SIZO. Upon arrival he was diagnosed as having high blood pressure.

On 20 June 2006 he was examined by a general practitioner. The applicant was diagnosed with blood hypertension and chronic pancreatitis, and was prescribed treatment.

By letter of 15 September 2006 the Odessa Regional Prosecutor ’ s Office informed the applicant that he was entitled to two hours outside walk, however, as he had had no such walks, the SIZO administration had been ordered to rectify the situation.

By letter of 19 October 2006 the Odessa Regional Department of Execution of Sentences ( Одеське обласне управління Державного департаменту з питань виконання покарань ) informed the applicant ’ s lawyer that in March 2006 the applicant was diagnosed with hypertension disease, stable angina, cardiosclerosis , high blood tension related eye problems and a spine disease. It was noted that the applicant was under the supervision of the medical staff and would be examined by outside specialists if need is.

On 2 July 2007 Odessa City Hospital No. 1 informed the applicant ’ s lawyer that the applicant ’ s examination in the Hospital was possible only after a complex check up which was impossible to do in SIZO.

On 7 October 2007 the applicant died. The cause of his death is unknown. It is also unclear if the applicant has been released before his death.

COMPLAINTS

The applicant complained about lack of adequate medical assistance in detention. In particular, he stated that after 1 March 2006 he had received no medical assistance at all.

The applicant further complained about his unlawful arrests of 7 November 2000, 31 October 2005 and 1 March 2006, and unlawful pre-trial detention. In particular, the applicant complained that he had been arrested in respect of charges for which he had been already acquitted, and that it was not possible to appeal against the decisions of 2 March and 6 July 2006.

The applicant invoked Articles 2, 3, 5 §§ 1, 3 and 4, 6 § 1 and 13 of the Convention and Article 4 of Protocol No. 7.

QUESTIONS TO THE PARTIES

1. Did the applicant ’ s conditions of detention after 31 October 2005 amount to a breach of Article 3 of the Convention? In particular, was adequate medical treatment and assistance provided to the applicant in the SIZO and was such treatment compatible with the requirements of Article 3 of the Convention?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention after 31 October 2005?

3. Was the length of the applicant ’ s pre-trial detention after 31 October 2005 in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

4. The parties are also invited to comment on the applicant ’ s daughter ’ s locus standi .