FIFTH SECTION

Application no . 4772/06 Vladimir Georgiyevich KOMAROV against Ukraine lodged on 16 January 2006

STATEMENT OF FACTS

The applicant, Mr Vladimir Georgiyevich Komarov , is a Ukrainian national who was born in 1962 and has a permanent address in Zaporizh zh ya .

A. The circumstances of the case

1. Criminal proceedings against the applicant

On 13 September 2003 four individuals, including the applicant, were arrested by the Zaporizhya Security Service Department in the Novokateshchino village on suspicion of mass production of opiate drugs and brought to Zaporizhya for questioning. According to the applicant, his car was examined without his permission and transported to Zaporizhya , where the authorities tried to appropriate it unlawfully. When eventually returned to the applicant ’ s family, the car had several parts replaced with those of poor quality.

The applicant ’ s minor son V. K. (born in 1991), who accompanied the applicant, was likewise brought to Zaporizhya on 13 September 2003 and detained with his father.

According to the applicant, following his arrest, the Security Service officers did not inform his relatives about the applicant ’ s and his son ’ s detention, did not explain the applicant his right to remain silent and interrogated him without giving an opportunity to contact a lawyer.

Later on 13 September 2003 V. K. started feeling unwell: his nose was bleeding, he was vomiting and had a headache. However, in spite of the applicant ’ s demands, no medical assistance was provided to him.

At an unspecified time the family was n otified of the arrest and on 14 September 2003 V. K. was released from the Security Service custody, apparently into his mother ’ s hands. According to the applicant, V. K. spent a total of about 24 hours in security service ’ s custody.

Following his arrest, the applicant was remanded in custody pending the investigation of the criminal case against him and held mostly in the Zaporizhya Pre-trial Detention Centre (SIZO).

On 19 September 2003 the applicant obtained a lawyer. However, his ability to consult him was very limited. The Zaporizhya SIZO was equipped with five cabins for meetings between lawyers and detainees. Because of high demand, the lawyers could spend an entire day and a night waiting in queue for availability of a cabin, as no time-slot or appointment system was put in place. In addition, the investigative authorities insisted under various pretexts that a number of investigative activities take place in the absence of the applicant ’ s lawyer.

On 6 February 2004 V. K., the applicant ’ s wife, was admitted in the proceedings as the applicant ’ s defence counsel.

In March 2004 the applicant and his co-defendants were committed to stand trial before the Leninskiy District Court of Zaporizhya . During the investigation and trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all evidence was fake and inadmissible. In fact, he, a retired police officer, had been arrested in company of drug addicts, with whom he was in contact as a resident advisor to the local police. They might have been producing drugs for their own use. He further alleged that his case lent itself to be examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of the informants ’ network.

On 25 October 2005, after having heard the case in public hearings, the Leninskiy District Court of Zaporizhya convicted the applicant and his co-defendants of production of unlawful drugs and sentenced them to various penalties. The applicant was sentenced to eight-and-a-half years ’ imprisonment and the confiscation of his personal property was ordered.

The applicant, represented by a lawyer and L. K. appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial, as he had been vigilant to safeguard confidential information concerning the informants ’ network. He also complained about various procedural breaches in the collection of evidence. In particular, he alleged that his right to defence was breached, as he had no access to a lawyer available to him from the first interrogation and, even following admission of a lawyer, the authorities had taken a number of investigative actions in the lawyer ’ s absence.

On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence ’ s request for holding the proceedings in camera to prevent public disclosure of information concerning the informants ’ network and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. L. K. did not receive security clearance in time for the appeal hearing and did not attend it.

On 22 June 2006 the Court of Appeal upheld the trial court ’ s judgment.

On 18 December 2007 the Supreme Court of Ukraine quashed this decision and remitted the case for a fresh consideration on appeal. It noted, in particular, that the applicant ’ s right to defence had been breached, since L. K. had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties ’ arguments in a summary way only, while it should have given detailed explanations in response to the parties ’ arguments.

On 22 December 2008 the Court of Appeal reviewed the case in L. K. ’ s presence, upheld the applicant ’ s conviction, reduced his sentence to eight years ’ imprisonment and ordered the confiscation of his personal property.

On 2 July 2009 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

2. Investigati on into the lawfulness of V. K. ’ s holding in the Security Officers ’ custody

On numerous occasions the applicant and L. K. complained to the p rosecutors ’ office about V. K. ’ s unlawful detention between 13 and 14 September 2003.

On 7 May 2004 the prosecutors ’ office conducted an inquiry and refused to institute criminal proceedings into the above complaint.

On 23 July 2004 this decision was quashed by the Deputy Zaporizhya Regional Prosecutor.

On 31 July 2004 the prosecutors ’ office refused to institute criminal proceedings for the second time, however the applicant and L. K. were informed that conduct of the Security Service officers vis-à-vis V. K. could have constituted disciplinary offences.

On an unspecified date L. K. requested the prosecutors ’ office to inform her about the outcome of the disciplinary proceedings against the officers involved in V. K. ’ s detention.

On 25 November 2004 the prosecutors ’ office informed L. K. that they had referred the matter to an unspecified competent authority, which was not obliged to inform L. K. about the results of its examination.

On an unspecified date the materials co ncerning the inquiry into V. K. ’ s detention were joined to the criminal case against the applicant.

On 25 October 2005 the Leninskiy District Court of Zaporizhya took a separate ruling, drawing the attention of the Chief of the Zaporizha Regional Security Service Department to procedural breaches in investigating the applicant ’ s case. It no ted, in particular, that V. K. ’ s detention in the Security Service ’ s premises between 13 and 14 September 2003 without notification of the family members and provision of medical assistance had been unjustified. It therefore invited the Chief of the Department to take appropriate measures to address this shortcoming.

On an unspecified date the applicant appealed to the Ordzhonikidzevskiy District Court of Zaporizhya against the prosecutors ’ office ’ s refusal to institute criminal proceedings into his son ’ s holding in Security Service ’ s custody.

On 3 April 2006 the court refused to consider this appeal, having found that the matter, joined to the criminal case against the applicant, should be addressed within the framework of these criminal proceedings.

In his appeal against his conviction, the applicant requested that his son ’ s detention be addressed as a separate item.

On 22 December 2008 in its judgment upholding the applicant ’ s conviction, the Court of Appeal noted that no separate action was necessary in addressing his son ’ s detention, since the prosecutors ’ office had already conducted an inquiry and had refused to institute criminal proceedings.

3. Conditions of detention in SIZO

In September 2003 the applicant was placed in the Zaporizhya Pre-trial Detention Centre (SIZO). He stayed there until an unspecified date in 2006 when his sentence was upheld by the Court of Appeal and he was transferred to Correctional Colony no. 91 to serve his sentence. He also stayed in the same facility for several months in 2008-2009 in connection with the second appeal proceedings in his case.

According to the applicant, the conditions of his detention were grossly inadequate. The cells were overpopulated. In particular, a cell measuring 3,8 square meters and having one sleeping platform could be occupied by eight to ten persons. As a result, detainees had to take turns to sleep. A bucket, which served as a toilet, was located one meter away from the eating space at everyone ’ s sight. It had no cover and was taken out once a day only. Ventilation was very poor, the cell smelled of excrements, was filled with cigarette smoke and was damp, in particular, as the detainees washed and dried their laundry there. It was also infested with co-crouches, lice and bedbugs. Shower, which had lukewarm water, was available only once in ten days. Access to natural daylight was severely limited because of the dense grid on the window. Electric lighting was so dim, that it was impossible to read or write without damage to the eyes. Food was meagre and insufficient to meet the detainees ’ nutritional needs. Outside walks were available on a scarce and irregular basis. Detainees sick with contagious diseases, such as tuberculosis, venereal diseases, pediculosis and scabies were held in the same cells as healthy detainees and not provided with medical assistance. As a result, the applicant also contracted scabies and other skin diseases.

On numerous occasions the applicant complained about an aggravation of his pre-existing hypertension and heart condition, but received no corresponding treatment or supervision.

On 13 March 2006 the Zaporizhya Regional Prosecutors ’ Office informed the applicant that it found his complaints ‘ substantiated in part ’ and that appropriate undefined measures had been taken to address them.

In October – November 2006 the applicant underwent in-patient treatment in the Bucha Correctional Colony no. 85 Hospital and found to be suffering from ischemic heart disease, cardio-sclerosis, angina, hypertension, chronic gastro- duodenitis , encephalopathy and osteochondrosis .

On 1 November 2006 the applicant was recognised as falling within the third (mildest) category of invalidity for one year.

In June 2009 the applicant was transferred to the Domnitskiy Correctional Centre (a settlement for convicted persons) to serve the remainder of his prison term.

On an unspecified date the applicant was released.

B. Relevant domestic law

The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

COMPLAINTS

On 16 January 2006 the applicant posted a letter to the Court, stating that he had been a victim of unspecified breaches of Articles 3, 5, 6 and 13 of the Convention.

On 3 February 2006 the applicant was sent the application form to be completed within six weeks of receipt.

On 14 July 2006 the applicant submitted a completed application form, in which he complained:

- under Article 5 §§ 1 (a), 2, 3, 4, 5 that he had been arrested and detained pending the pre-trial investigation of his case in breach of applicable law; that his son had been unlawfully detained between 13 and 14 September 2003 and that both of them were treated poorly by the Security Officers;

- under Articles 1, 2, 3, 7, 17 and 18 of the Convention that the physical conditions of his detention and healthcare arrangements in the Zaporizhya SIZO in 2003 – 2006 were grossly inadequate;

- under Article 6 of the Convention that the proceedings against him were inordinately lengthy and unfair, in particular, as the case had not been examined in first instance in camera and by a judge who had security clearance, the media had not been excluded from the proceedings; the court of appeal acted unprofessionally in organising the security clearance; and the applicant ’ s state of health not been taken into account in deciding on his detention;

- under Article 13 of the Convention that his right to have a defence lawyer had been breached; that the investigative authorities had generated negative publicity around him, unlawfully searched his relatives and arrested their property;

- under Article 3 of Protocol no. 7 that he had obtained no compensation for his placement in custody in breach of the law; and

- under Article 1 of Protocol no. 1 that his car and some of his belongings contained in the car had been unlawfully appropriated by the authorities.

In addition, the applicant invoked Article 14 of the Convention without any specification.

On 17 September 2011 the applicant additionally complained that his wife had been unable to take part in the first appeal hearing; that the courts had ignored or misinterpreted his arguments and requests in the course of the criminal proceedings; that his criminal conviction had been generally unfair; and that the conditions of his transport between the Correctional Colony and the Zaporizhya SIZO in 2008 and 2009 and medical assistance available to him in the course of his post-conviction detention had been inadequate. The applicant referred to Articles 1, 2, 3, 5, 6, 7, 13 and 17 of the Convention, Article 1 of Protocol no. 1 and Article 3 of Protocol no. 7 in respect of the above complaints.

Finally, he referred to Articles 1, 2, 3, 6, 7, 8, 13 and 17 of the Convention and Article 3 of Protocol no. 7 in respect of his earlier complaint under Article 5 of the Convention concerning the custody of his son.

QUESTIONS TO THE PARTIES

1. Were the conditions of the applicant ’ s detention in the Zaporizhya SIZO, including the physical, sanitary and healthcare arrangements, compatible with Article 3 of the Convention?

2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by Article 6 § 3 (c) of this provision?

In particular, was the applicant ’ s right to legal representation observed, regard being had to the fact that he had no lawyer during the initial stage of the investigation and that once appointed, his lawyer was not always present during the investigative actions? Was the applicant afforded sufficient facilities to communicate with his lawyer during his detention in the Zaporizhya SIZO?

The Government are invited to provide copies of relevant procedural documents, including those concerning the appointment of the lawyer to the applicant and his presence during the major investigative activities, the applicant ’ s complaints about insufficiency of the facilities to meet with his lawyer, if any, and other relevant documents.

3 . Did the holding of the applicant ’ s son in custody in the Security Service premises on 13 and 14 September 2003 constitute a ‘ deprivation of liberty ’ for the purposes of Article 5 § 1 of the Convention? If so, did it fall within one of the subparagraphs of the provision at issue and was it lawful?

The Government are invited, in particular, to inform the Court where exactly was the applicant ’ s son accommodated, what arrangements were made to meet his physiological, healthcare and other needs, and at what time and under which circumstances he was released from the Security Service ’ s premises.

4. Did the holding of the applicant ’ s son in custody in the Security Service premises on 13 and 14 September 2003 constitute interference with his rights guaranteed by Article 8 of the Convention? If so, was it lawful and necessary in a democratic society?