FIFTH SECTION

Application no. 44253/09 Volodymyr Ivanovych PANASENKO against Ukraine lodged on 3 August 2009

STATEMENT OF FACTS

The applicant, Mr Volodymyr Ivanovych Panasenko , is a Ukrainian national, who was born in 1959 and is currently serving his sentence in prison. He is represented before the Court by Mr O.V. Levytskyy , a lawyer practising in Kyiv.

The circumstances of the case

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

1. Incident of 26 October 2006 and ensuing criminal proceedings

At the relevant time the applicant worked as a senior manager at the limited liability company running one of the wholesale markets in Lviv . Mr F. was the director of that company.

On the morning of 26 October 2006 the car of F., parked in the street, exploded. F., his driver, and the chief security agent of the company, who were standing near the car, sustained bodily injuries. Also, at the time of the explosion three schoolgirls were walking by the car on their way to school. One of the girls, who turned out to be close to the car at the moment of explosion, sustained numerous injuries and bone fractures, including perforating wound to the right hip. As a result of the injuries, the girl lost a lot of blood and died at the place of the incident.

On 18 and 20 November 2006 the police arrested two men, Ye. and R. on suspicion of having arranged the explosion of the car with the aim of killing F. Following their arrest they were provided with lawyers. During the investigation, R. and Ye. changed their lawyers at their own request.

On 27 November 2006 the police arrested the applicant suspecting him of having been the organiser of the crime. On the same day the applicant was confronted with R. During the confrontation the applicant allegedly was not assisted by a lawyer. Later, the applicant was represented by two lawyers throughout the criminal proceedings.

In December 2006 the investigator in charge of the criminal case suspected a police officer, who was involved in the investigation, of possible clandestine dealing with one of the applicant ’ s lawyers. Therefore, on 26 December 2006 the investigator applied to the Lviv Region Department of the State Security Service seeking that secret operational and investigative measures be carried out in that respect.

On 2 April 2007 the department of the State Security Service informed the investigator that the measures carried out according to his request had not yielded any results.

On 15 June 2007 the investigation was completed. Between 18 June and 25 July 2007 the applicant studied the case file. Due to health problems he, allegedly, was not in position to study the file properly.

On 19 September 2008 the Lviv Region Court of Appeal, acting as a first-instance court, found the applicant, Ye. and R. guilty of the attempted murder of F., the murder of a schoolgirl, the infliction of bodily injuries to persons affected by the explosion, the wilful destruction of property, and the unlawful purchase and manufacturing of explosive device. The applicant was convicted to life imprisonment and his property was confiscated. Ye. and R. were convicted, respectively, to fourteen and twelve years ’ imprisonment and their property was confiscated.

On 24 February 2009 the Supreme Court dismissed the applicant ’ s lawyers ’ appeals and upheld the findings of the first-instance court. It however introduced certain textual amendments to the judgment of the first ‑ instance court.

On 1 June 2009 the Lviv Court of Appeal refused the applicant ’ s wife wishing to examine and copy the criminal case file.

On 18 August 2009 the Supreme Court, following the request by the prosecutor, rectified the judgment of 19 September 2008 to remove a technical error in it.

2. The conditions of the applicant ’ s detention

Since 1989 the applicant has suffered from bronchial asthma. Since 2000 the applicant was regularly examined at a local pulmonological centre and diagnosed with bronchial asthma of medium or high degree and second degree hypertensive illness.

Between 1 December 2006 and 4 May 2009 the applicant was held in the Lviv Pre-Trial Detention Centre no. 19 (“the Lviv SIZO”).

For a certain period of time the applicant was held in a cell without any window with other detainees who smoked regularly. This provoked frequent asthmatic attacks and caused headache.

On 4 January 2007 the Lviv Region Bureau of Forensic Medical Expertise issued a letter stating that on 2 January 2007 the applicant suffered from acute bronchial asthma, pulmonary emphysema and hypertensive illness.

On 9 February 2007 the applicant was examined by a pulmonologist who noted that the applicant suffered from bronchial pneumonia, third degree bronchial asthma and pulmonary insufficiency.

On 21 February 2007 a board of forensic psychiatric experts issued a report noting that the applicant was not suffering from mental illness and the bronchial asthma he was indeed suffering from could not cause a mental disorder.

On 16 April 2007 the Lviv SIZO informed the applicant ’ s lawyer that the staff pulmonologist was not available at the medical unit of the detention facility. The applicant was treated by the general medical practitioner (therapist).

On 14 March 2007 the applicant was examined by the pulmonologist as he had an acute asthmatic attack.

On 3 May 2005 the governor of the Lviv SIZO, in reply to the applicant ’ s lawyers queries, noted that the applicant frequently complained of asthmatic attacks. The governor further noted that a staff pulmonologist was not available at the facility and it was recommended that the applicant be treated in a specialist medical institution.

On 21 September 2007 the governor of the Lviv SIZO informed the trial court that the applicant frequently complained of asthmatic attacks and headache. The facility provided the applicant with requisite treatment. Part of the medicine was supplied by the applicant ’ s relatives.

According to the applicant, during his transportation from the detention facility to the investigator and the court the applicant was accompanied by a dog and its fur provoked asthmatic attacks.

On 5 May 2008 an ambulance arrived at the trial court to provide the applicant with medical treatment in connection with another asthmatic attack.

COMPLAINTS

1 . The applicant complains that the conditions of his detention in the Lviv SIZO were contrary to Article 3 of the Convention. In particular, he was not provided with adequate medical care, he was detained in a cell with detainees who regularly smoked, his transportation between the detention facility and a court was inappropriate.

2 . The applicant complains under Article 6 §§ 1 and 2 of the Convention that the courts failed to properly assess the evidence in the file and convicted him without giving sufficient reasons.

3 . The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that he did not have sufficient time to study the case file before the trial.

4 . The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he was not provided with a lawyer on 27 November 2006.

5 . The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that the secret investigative measures carried out by the State Security Service between December 2006 and April 2007 affected the work of one of the applicant ’ s lawyers.

6 . The applicant complains under Article 6 § 1 of the Convention that the Supreme Court did not summon him for the hearing of 18 August 2009.

7 . The applicant complains under Article 34 of the Convention that his wife was not given access to the case to prepare the application to the Court.

QUESTION TO THE PARTIES

Has there been a breach of Article 3 of the Convention in connection with the applicant ’ s allegations that he was not provided with adequate medical care in the Lviv SIZO, that he was detained in a cell with detainees who regularly smoked, and that his transportation between the detention facility and a court was inappropriate?

The Government are invited to provide medical and other relevant material in support of their submissions.