FIFTH SECTION

Application no . 24938/06 Vikentiy Bronislavovich VITKOVSKIY against Ukraine lodged on 15 June 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vikentiy Bronislavovich Vitkovskiy , is a Ukrainian national who was born in 1980 and lives in Novomoskovsk.

A. The circumstances of the case

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

1 . Criminal proceedings against the applicant

On 27 June 2004 a certain Ms R. called the police, complaining that somebody had climbed on to her balcony and entered her flat. She left the intruder inside her flat and made the telephone call from a neighbour ’ s flat. When they arrived at the scene the police discovered R. ’ s flat in a mess and the applicant inside with two pairs of gloves and a torch. Though he denied any ill intent and claimed to have entered the flat in question by mistake, he was arrested and taken to the police station.

On 12 April 2005 the Novomoskovsk Town Court (“the Novomoskovsk Court ”) found the applicant guilty of burglary and attempted theft and sentenced him to three years and eight months ’ imprisonment. On 23 September and 15 December 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal ”) and the Supreme Court respectively upheld that judgment.

On 30 June 2006 the Novomoskovsk Court delivered another judgment finding the applicant, with some others, guilty of about ten counts of theft and involvement of a minor in criminal activities and sentenced him to five years ’ imprisonment. The final sentence, including the portion outstanding under the verdict of 12 April 2005, was five years and six months ’ imprisonment. On 16 October 2007 the Court of Appeal quashed that judgment in the part concerning the applicant, for some procedural irregularities (namely the removal of the applicant from the courtroom before his last plea and the pronouncement of the verdict). The case was remitted for fresh examination to the first-instance court. There is no information on further developments in these proceedings.

2 . Alleged ill-treatment of the applicant and its investigation

On 28 June 2004, at about 8 a.m., two police officers in the Novomoskovsk Police Station questioned the applicant in respect of the attempted theft in R. ’ s flat. They allegedly subjected him to ill-treatment seeking his confession. Specifically, according to the applicant, they punched and kicked him, strangled him with a towel, put a gas mask on his face and hampered his breathing, as well as gave him electric shocks to the fingers and testicles . The applicant did not confess , however.

On 29 June 2004 the applicant complained about his alleged ill-treatment to his mother, who, in turn, raised this complaint before the prosecution authorities and requested a medical examination for him. She noted that her son was in frail health and was suffering from duodenal and gastric ulcers, as well as a prolapse of the mitral valve (of the heart).

On 2 July 2004 a forensic medical expert examined the applicant and documented multiple bruises on his both eyelids, the left temple, both earlobes, the chest, the knees, the left shoulder, and the left buttock, as well as sores on the chin, the wrists and the knees. The expert described the injuries as light, and concluded that they could have been inflicted on the applicant in the circumstances described by him. The injuries in question had originated from at least nine blows with blunt hard objects. No injuries were discovered on the applicant ’ s fingers or testicles.

By its rulings of 14 July 2004, 23 September and 1 December 2005, and 17 February 2006, the Novomoskovsk Town Prosecutor ’ s Office (“the NTPO”) refused to institute criminal proceedings against the police officers in respect of the applicant ’ s allegation of ill-treatment. All those rulings were quashed either by the Dnipropetrovsk Regional Prosecutor ’ s Office (“the DRPO”) or by the Novomoskovsk Court , on the ground that the investigation had been incomplete.

On 7 March 2007 the DRPO informed the applicant that there had been another refusal by the prosecuting authorities to institute criminal proceedings against the police officers, for lack of corpus delicti discerned in their actions (no further details provided).

On 19 March 2007 the applicant complained to the Supreme Court that the investigation into his allegation of ill-treatment had wrongly been entrusted to the NTPO, which, in his view, could not be regarded as independent. The Supreme Court however declined jurisdiction over the matter.

There is at present no information in the case file as regards any further developments in the investigation.

3 . Conditions of the applicant ’ s detention and his related complaints to domestic authorities

The applicant was detained in the Novomoskovsk Temporary Detention Facility (“the ITT”), the Dnipropetrovsk Pre-Trial Detention Centre (“the SIZO”) and Zhovti Vody Prison no. 26 (“the prison”). The exact durations of his detention in the ITT and the SIZO are unknown. As to his detention in the prison he was transferred there to serve his sentence on 20 April 2007.

In November 2005 the applicant complained to the prosecuting authorities about the allegedly inadequate conditions of his detention in the ITT. On 13 February 2006 the DRPO replied that, indeed, some of his complaints had been upheld. Specifically, there were no electric plugs in three of the ITT cells, and the administration had been directed to remedy the situation.

According to an information note issued by the ITT Governor on 6 June 2006, there was an entry in the medical assistance logbook, according to which on 5 June 2006, at 10.15 p.m., an ambulance had been called for the applicant when he complained of stomach pains. The doctor diagnosed him with ulcer and provided unspecified medical assistance.

The applicant also complained to the prosecuting authorities about the searches conducted in his cel l in the SIZO on 27 March and 3 April 2007 which resulted in the allegedly unlawful seizure of his personal belongings. He also complained that, both in the SIZO and in the prison, he had not been provided with adequate medical care and that he had been arbitrarily disciplined on many occasions. On 22 June 2007 the DRPO informed the applicant that his complaints had been investigated, but had proved unsubstantiated.

On 6 June 2007 the applicant lodged a civil claim with the Zhovti Vody Court, raising the following allegations: on 9 May 2007 three guards had twisted his arms and handcuffed him “asking for some unspecified explanations”; on 22 May 2007 the prison administration had refused to provide him with a yeast food supplement; and on 5 June 2007 the administration had seized his complaints addressed to the prosecution authorities. On 14 June 2007 the court declined civil jurisdiction over the case and returned the claim to the applicant.

In October 2007 the applicant complained to the DRPO about the conditions of his detention. He submitted that he was not receiving nutrition in compliance with his medical needs, and that during his detention in the prison punishment cell from 5 to 14 October 2007 he had no writing materials to enable him to write complaints.

On 30 January 2008 the State Department for Enforcement of Sentences wrote to the applicant that his complaints had been investigated and found to be without foundation. The letter specified that the applicant had breached the regulations concerning detainees ’ correspondence by sending a complaint without informing the prison administration. He was warned that should this happen again disciplinary measures would follow.

4 . Review of the applicant ’ s case following the decriminalisation of petty theft

In September 2006 the applicant sought to be relieved from the criminal liability imposed by the judgment of 12 April 2005, with a reference to the amendments to the Code of Administrative Offences of 30 June 2005 decriminalising petty theft.

On 13 March 2008 the Novomoskovsk Court rejected his claim. It noted that, in addition to the attempted theft of 27 June 2004, the applicant had also been accused of numerous other counts of theft. Accordingly, there was no reason to consider that on 27 June 2004 he had been attempting only petty theft.

On 13 June 2008 the Court of Appeal upheld the aforementioned decision. It also referred to the fact that on 27 June 2004 the police had discovered the applicant in R. ’ s flat with two pairs of gloves and a torch, with the flat in a mess, as an indication of the applicant ’ s intention to steal a considerable amount of property.

On 30 April 2009 the Supreme Court however quashed those decisions and remitted the case to the first-instance court for fresh examination. It criticised the lower courts for overstepping the findings of the judgment of 12 April 2005. Thus, the Supreme Court noted that the first-instance court had wrongly referred to some additional charges of theft against the applicant not covered by the judgment in question. It also observed that that judgment had not made any assessment of the value of the property the applicant had attempted to steal, and therefore the appellate court had had no basis for its finding that he had in fact attempted theft on a considerable scale.

On 2 September 2009 the Novomoskovsk Court allowed the applicant ’ s claim. It noted that the impugned judgment of 12 April 2005 had not established the value of the property he had attempted to steal. It was therefore impossible to establish unequivocally whether or not the theft in question could be regarded as petty. Relying on the principle of presumption of innocence, the court stated that any doubts were to be interpreted in the applicant ’ s favour. As a result, the court relieved him from the punishment imposed by the judgment of 12 April 2005. As to the applicant ’ s request about removal of the conviction from the official records, the Novomoskovsk Court held, with reference to Article 88 of the Criminal Code (see below) that this was of no relevance, given that he was considered as having no criminal conviction.

B. Relevant domestic law and practice

Pursuant to Article 88 of the Criminal Code, those released from or who have served a sentence for an action which has been decriminalised, shall be regarded as having no criminal conviction.

Article 185 § 3 of the Criminal Code provided for three to six years ’ imprisonment as the penalty for theft with burglary at the material time.

Following the amendments to the Code of Administrative Offences in effect since 30 June 2005, petty theft became an administrative offence.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by police and that there was no effective investigation into the matter.

He further complains under the same provision about the conditions of his detention in the ITT, the SIZO and the prison. The applicant alleges, in particular, that his ITT and SIZO cells were infested with insects and poorly lit and that the bed linen was dirty. He further complains that he had to share cells with drug addicts and HIV-infected detainees, and was thus exposed to a risk of infection. He also complains about frequent power cuts, lack of adequate lighting and irregular water supply in the prison.

Apart from the material conditions of his detention, the applicant complains that he was arbitrarily subjected to disciplinary measures on many occasions, and that he did not receive medical care and nutrition in detention in compliance with his medical needs.

The applicant next complains under Article 3 about the searches of his SIZO cell on 27 March and 3 April 2007, as having allegedly resulted in the seizure of his personal belongings such as the Code of Criminal Procedure with comments, and his notepad with some telephone numbers and other important information, as well as that some of his food had been spoiled.

He also complains that the prison administration infringed his right of respect for his correspondence. More specifically, he alleges that on 5 June 2007 the administration withheld, forcibly, his letters containing complaints to various authorities.

He further complains that his work in the prison was overly hard and dangerous, and was poorly paid.

The applicant also complains under Article 3 that the domestic courts had relieved him from the sentenc e imposed by the judgment of 12 April 2005 with an inexcusable delay and that his detention resulting from that conviction had in itself amounted to inhuman and degrading treatment.

He next complains under Article 6 § 1 that his conviction on 12 April 2005 was unfair, submitting that the courts were formalistic and found him guilty in the absence of solid evidence against him. Furthermore, he complains that he could not effectively participate in the pleadings in the first-instance court, as he was feeling unwell.

The applicant also complains under Article 6 § 1 that the proceedings brought by him following the decriminalisation of petty theft lasted very long and were unfair. He complains, additionally relying on Article 3 of Protocol No. 7, that he was criminally punished for what had ceased to be a crime.

Lastly, the applicant complains, with reference to Article 13 , that his complaints to various domestic authorities were not successful.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture , inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

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), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the conditions of the applicant ’ s detention in the Novomoskovsk Temporary Detention Facility, the Dnipropetrovsk Pre-Trial Detention Centre and Zhovti Vody Prison no. 26 (“the prison”) comply with the requirements of Article 3 of the Convention ?

4. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention, as regards the searches in his SIZO cell on 27 March and 3 April 2007 and the alleged seizure of his personal papers ? If so: (a) was the interference in accordance with the law ? (b) and was it ne cessary in terms of Article 8 § 2 of the Convention?

5. Has there been an interference with the applicant ’ s right to respect for correspondence within the meaning of Article 8 § 1 of the Convention, as regards the alleged censorship and withholding of his correspondence by the prison administration? If so: (a) was the interference in accordance with the law ? and (b) was it necessary in terms of Article 8 § 2 of the Convention?