FIFTH SECTION

Application no. 25209/06 Pavel Vladimirovich GORBATENKO against Ukraine lodged on 9 June 2006

STATEMENT OF FACTS

The applicant, Mr Pavel Vladimirovich Gorbatenko , is a Ukrainian national, who was born in 1978 is currently serving life-imprisonment sentence in the Kharkiv Pre-Trial Detention Centre (SIZO).

A. The circumstances of the case

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

1. First set of the criminal proceedings against the applicant

On 10 August 2004 the applicant was apprehended by the Kharkiv police on suspicion of several counts of theft and robbery.

According to him, he was subjected to extensive beating and made confessing statements under duress as dictated by the police.

On 13 August 2004 the Kharkiv District Court remanded the applicant in custody pending trial.

According to the aforementioned ruling, the applicant was supposed to be detained in the Kharkiv Pre-Trial Detention Centre (SIZO). In reality, he however remained detained, till 21 August 2004, in the Temporary Detention Centre (ITT). The applicant explained this by the fact that there were still traces of ill-treatment on him and that some time was needed for those to disappear. His requests for medical examinations and assistance were allegedly ignored.

Between August 2004 and July 2005 the applicant was transferred on several occasions to Sevastopol where another criminal case in his regard was being investigated (see the “Second set of the criminal proceedings against the applicant” below).

In August 2011 the pre-trial investigation was declared completed and the applicant was given access to the case file on 3, 5, 9 and 12 August 2011. While he requested more time for studying the file, the Kharkiv District Court rejected this request as unjustified. It noted that the applicant had been unreasonably slow studying only about twenty pages per day, and that one such extension had already been granted to him.

On 24 September 2011 the Kharkiv Regional Prosecutor ’ s Office issued a ruling refusing to open a criminal case in respect of the applicant ’ s complaint of ill-treatment. The ruling was based on the statements of the investigator who denied any coercion towards the applicant. It further noted that at the time of the events the applicant had not lodged any complaints to that regard.

The applicant wrote to the Kharkiv Regional Prosecutor ’ s Office disagreeing with the aforementioned refusal. In reply, he was informed that it was open for him to challenge the ruling before the higher-level prosecution authorities or courts.

On 9 November 2011 the Kharkiv District Court found the applicant guilty of several counts of robbery and theft and sentenced to him to five years ’ imprisonment. That sentence was however absorbed by his life imprisonment under the judgment of 13 April 2005 (see below). The trial court dismissed as unsubstantiated the applicant ’ s complaint of his ill-treatment in police custody. It noted that his allegation in that regard had been duly investigated by the prosecution authorities which had concluded that there was no case to be answered.

On 11, 13, 17 and 19 January 2012 the applicant was provided access to the case file.

His cassation appeal apparently remains pending.

2. Second set of the criminal proceedings against the applicant

At some point in August 2004 another criminal case, this time on suspicion of infliction of grievous injuries on two persons and their property destruction (committed in Sevastopol ), was opened in respect of the applicant. Namely, the applicant was suspected of having inflicted multiple injuries with an axe on a family couple and of having then set their property on fire. On 15 August 2004 the applicant confessed to the incriminated crimes during his questioning by an investigator of the Sevastopol City Prosecutor ’ s Office.

In September 2004 the injuries charge against the applicant was reclassified to murder, as the victims had died of the injuries inflicted.

On 15 September 2004 the Leninskyy District Court of Sevastopol (“the Leninskyy Court ”) ordered the applicant ’ s detention for seventy-two hours.

On 20 September 2004 the Kharkiv District Court allowed the applicant ’ s transfer from the Kharkiv SIZO to the Simferopol SIZO for the investigative measures to be undertaken in the framework of this case.

On 19 October 2004 the Leniskyy Court ruled that he remain in pre-trial detention pending trial.

On 29 October 2004 the Sevastopol City Court of Appeal upheld that ruling.

On 13 April 2005 the Sevastopol City Court of Appeal, sitting as a court of first instance, found the applicant guilty of double murder and property destruction and sentenced him to life imprisonment. At the court hearing, the applicant admitted having injured the victims with an axe, but maintained that he had had no intention of killing them. He also admitted having set the household on fire, but explained this by his intention to draw attention to the victims so that somebody could help them. At the same time, the applicant complained that he had confessed of the fear of revenge by the police. The court noted that the applicant had been questioned by the prosecutor in the presence of his lawyer which excluded any pressure on him. The court also rejected the applicant ’ s request to call as witness the doctor who had provided the victims with the first medical aid while they had still been alive. The applicant ’ s point was that the victims had not died immediately.

According to the applicant, the appointed lawyer ceased assisting him after the pronouncement of the verdict. The case file however contains a copy of a cassation appeal prepared by the lawyer appointed for the applicant in his interests. The cassation appeal referred to the alleged distortion of the facts of the case. Furthermore, the lawyer submitted that the investigation into the applicant ’ s complaint of ill-treatment had not been thorough enough. He noted that the trial court had relied only on the statements of the investigator and the prosecutor dealing with the case, but had not referred to any materials of the investigation as such.

The public prosecutor also appealed against the judgment seeking mitigation of the sentence for the applicant. He submitted that the murder in question had not been premeditated in advance but had taken place in the heat of a dispute. Furthermore, the applicant had voluntarily confessed, which should have a mitigating effect for his sentence.

On 14 July 2005 the Supreme Court upheld the judgment of 13 April 2005. On 3 March 2006 its ruling was served on the applicant.

Later on in 2006 the applicant complained to the Prosecutor General ’ s Office, in particular, about his alleged ill-treatment and the inadequacy of its investigation. He noted that the investigation had in fact been entrusted to the investigator who had been dealing with his case.

3. Conditions of the applicant ’ s detention

According to the applicant, the conditions of his detention in some of the detention facilities were grossly inadequate.

From 18 October to 2 November 2004, from 10 November 2004 to 22 January 2005, from 2 to 10 February 2005, and from 18 March to 13 April 2005, and possibly at some point thereafter, the applicant was detained in the Sevastopol ITT. According to him, his cell there was seriously overcrowded (about thirty inmates instead of the maximum of eight), lacked natural light and was infested with insects. There was no hot water supply. Outdoor walks lasted for twenty minutes and did not take place every day. Furthermore, there was no sufficient number of sleeping places for all detainees who had to take turns to sleep. The toilet was not separated from the living area. The cell had no table.

From 14 February to 1 March 2006 the applicant was detained in the Dnipropetrovsk SIZO. He described the conditions of his detention there as follows. The cell was extremely small, dark and damp, with a concrete floor, no ventilation and an open toilet. It also had a video camera in the wall for the detainees ’ monitoring. Prisoners were handcuffed during their daily walks and cell searches (held on a daily basis).

The applicant also gives a similar description of the conditions of his detention in the Kharkiv SIZO (the periods of his detention there are not clear): no ventilation, mould walls, concrete floor, no drinking water in the cell, limited daily walks of about forty minutes, no sanitary and hygienic supplies, no radio in the cell, poor medical care, mice in some cells.

4. Other facts

The applicant unsuccessfully tried to institute civil or administrative proceedings against some of the judges involved in his criminal cases seeking compensation for damages associated with his allegedly unfair trial.

COMPLAINTS

The applicant alleges, with reference to Article 3 of the Convention, that he had been ill-treated by the police following his arrest on 10 August 2004 and that there was no adequate or independent investigation into the matter.

He also complains under the same provision about the conditions of his detention in the Sevastopol ITT, the Dnipropetrovsk SIZO and the Kharkiv SIZO.

The applicant next complains that his detention between 15 September and 19 October 2004 lacked any legal basis.

He further complains under Article 5 § 2 of the Convention that he was not promptly informed about the charges against him (within the first set of proceedings).

The applicant complains under Article 6 of the Convention about the alleged unfairness of his trial in both sets of the criminal proceedings against him. As regards the first set, he also complains about the length of the proceedings.

He complains under Article 6 § 3 (b) that he did not have sufficient time and facilities for the preparation of his defence because of the time-limits for his familiarisation with the case file and because of his frequent transfers from one detention facility to another.

The applicant also complains, with reference to Article 6 § 3 (c), that the trial court had failed to accommodate his numerous requests and motions.

His next complaint, raised under Article 6 § 3 (d), concerns the trial court ’ s rejection of his request to call as witness the doctor who had provided the victims with the first medical aid.

The applicant further complains, with reference to Article 8, that his incoming correspondence had not been promptly forwarded to him following his transfers from one detention facility to another. He also complains under the same heading that some of the documents in his possession had gone missing.

He also complains, relying on Article 10, that the presiding judge in his trial had unduly limited his right to express his views and arguments.

The applicant further complains, with reference to Article 13, that the appointed lawyer did not defend his interests with due diligence.

Lastly, the applicant invokes Article 14 of the Convention alleging his discrimination as a prisoner and Russian-speaking in his unsuccessful attempts to bring proceedings against the judges.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention, following his apprehension on 10 August 2004?

2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), has the investigation in the present case by the domestic authorities been in breach of Article 3 of the Convention?

3. Were the conditions of the applicant ’ s detention in the Sevastopol ITT, the Dnipropetrovsk SIZO and the Kharkiv SIZO compatible with the requirements of Article 3 of the Convention?

4. Has the length of the criminal proceedings in the present case (first set) been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Government are also requested:

- to submit all the documents as regards the applicant ’ s medical examinations following his detention of 10 August 2004 and later on, if any such examinations were undertaken in the course of the investigation of his complaint of ill-treatment;

- to submit copies of all the applicant ’ s complaints regarding his alleged ill-treatment in policy custody and the authorities ’ responses to those complaints, as well as any decisions taken in the course of the domestic investigation into the matter;

- to specify the periods during which the applicant was detained in the Sevastopol ITT, the Dnipropetrovsk SIZO and the Kharkiv SIZO and to provide documents regarding the conditions of his detention therein.