FIFTH SECTION

Application no . 2585/06 Igor Vladimirovich DANILOV against Ukraine lodged on 30 December 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Igor Vladimirovich Danilov, is a Russian national , who w as born in 1967 and is currently serving a prison sentence .

A. The circumstances of the case

On 13 December 2002 the applicant, along with several other individuals, was arrested in Mykolayiv , Ukraine , as a suspected affiliate of a group of “revolutionary communists” implicated in handling unlawful arms and explosives and a number of violent crimes. Further to his arrest (on 16 December 2002) the applicant was remanded in custody pending investigation of the charges against him.

According to the applicant, upon his arrest he was brought to the police station and, without being given the opportunity to obtain a lawyer, was severely beaten and tortured. In particular, the police officers suspended him on a stick with his hands handcuffed and beat him with rubber truncheons; electrocuted him through the handcuffs; stuck needles under his nails; put a gas mask on his face to interrupt his air flow; banged his head against the wall; jumped on his chest, then left him handcuffed and naked on an iron bed.

On an unspecified date in December 2002 the applicant obtained a lawyer.

On 26 December 2002 the applicant was certified to be suffering from various injuries. In particular, his ribs hurt when palpated, his wrists were swollen and had deep marks caused by handcuffs, and he had contusions in the areas of the chest and knee joints.

On 3 January 2003 a further medical examination certified that the applicant had numerous abrasions and wounds on his limbs, incurred between three and four weeks before the examination. A more exact dating was found to be impossible, regard being had to the development of a wound infection. These findings were subsequently (on 13 February 2003) confirmed by another medical assessment, which stated, additionally, that the applicant suffered from numerous wounds, abrasions and lesions on various parts of the body, caused by impact with blunt objects, possibly on the date and under the circumstances indicated by the applicant. Subsequently (o n 24 April 2003 ) the applicant underwent a further medical examination, which established that he had conso lidated fractures of seven ribs.

On 13 January 2003, following complaints by the applicant and his lawyer, the Mykolayiv Prosecutor ’ s Office refused to institute criminal proceedings into the applicant ’ s alleged torture, having noted that the applicant had been injured during his arrest. As the force applied to him had been necessary in view of his violent resistance (the applicant had shot at the law-enforcement officers and attempted to activate an explosive), the officers ’ actions had been justified.

On numerous occasions the applicant and his lawyers unsuccessfully challenged these findings before the investigative bodies, alleging that no comprehensive investigation had been carried out into the applicant ’ s complaints. In particular, the applicant himself had not been questioned. Moreover, the circumstances in which he had obtained his injuries, including rib fractures and wounded, swollen wrists, had not been established. They further argued that, regard being had to the nature of the injuries, they were indicative of police ill-treatment, rather than an arrest operation.

On an unspecified date in winter 2003 the applicant was admitted to the Odessa no. 21 pre-trial detention centre (S IZO ) medical unit for in-patient treatment of pneumonia and stayed there for three months. However, according to the applicant, his treatment was inadequate. In particular, the unit did not have the necessary antibiotics in stock and did not offer him an operation to remove the fractured rib fragment from his lung. The SIZO was generally overcrowded and had very poor sanitary arrangements, which exacerbated the applicant ’ s suffering.

On 17 April 2003 the applicant underwent a psychiatric assessment, and was certified as suffering from paranoid schizophrenia in remission stage (practically cured). The applicant was found to have been capable of understanding and controlling the actions leading to the charges he faced and capable of participating in the investigation and trial. He was likewise found not to need any psychiatric medical intervention at the material time.

On 27 May 2003 the pre-trial investigation was completed and the applicant, along with ten other individuals implicated in criminal activity as members of the revolutionary communist group, was committed to stand trial before the Odessa Regional Court of Appeal to act as a first-instance court. The applicant was accused, in particular, of distributing printed materials inciting violent revolt against the Constitutional order; participation in armed robberies; attempted murder of several law ‑ enforcement officers; smuggling of goods across the Russian border; unlawful handling of arms and explosives and membership of a criminal association.

During the trial, the applicant acknowledged that he had supported revolutionary communist views and had taken part in some unspecified “expropriations” of property for revolutionary purposes. He also acknowledged that he had inflicted firearm wounds on two police officers in November 2002, in response to their request to produce identification documents and that in December 2002 he had resisted the law-enforcement officers during his arrest with firearms and explosives. He refused to make further comments with regard to the robberies and distribution of propaganda. The applicant also alleged that he had been severely ill-treated by the police at the beginning of the investigation, possibly in revenge for his assaults on police officers, and that adequate medical assistance had not been made available to him. He noted, however, that the ill-treatment had not influenced the testimonies he had provided to the investigation.

In November 2003 B., one of the applicant ’ s co-defendants, died in detention.

Following his death, some of the defendants complained that B. had been tortured to death and demanded an investigation into his and the others ’ alleged ill-treatment by the investigative authorities.

The court ordered the Prosecutor ’ s Office to investigate these allegations. Following the investigation, the Prosecutor ’ s Office reported that there was no case to answer, as B. had died of cancer and the applicant had been injured during his arrest rather than ill-treated at the police headquarters.

On 19 July 2004 the Odessa Regional Court of Appeal convicted the applicant for distribution of printed materials propagating violent revolt against the Constitutional order; criminal association membership, participation in several armed robberies, attempted murder of police officers, smuggling, and unlawful handling of firearms and explosives. The applicant was sentenced to fourteen years ’ imprisonment. The court dismissed his allegations of ill-treatment as unsubstantiated, having accepted the prosecution ’ s version of events, according to which the applicant ’ s injuries had been caused during his arrest.

The applicant, represented by a lawyer, appealed in cassation. He alleged that he had been arbitrarily convicted of the robberies based on the inconsistent testimonies of his co-defendants. He further alleged that he had had no intent to kill the police officers when attacking them, and that the motives for his participation in the revolutionary communist group were benevolent; namely, he supported a political movement aiming to liberate the people from an oppressive political regime. He further reiterated his complaints about having been severely tortured by the police and demanded a criminal investigation. It is not clear from the case file whether the applicant complained about a breach of his right to defence.

On 26 July 2005 the Supreme Court upheld the applicant ’ s conviction and sentence in principle, having made some amendments to the text. It noted, in particular, that the applicant ’ s conviction was based on sufficient evidence, including testimonies by some of his co-defendants and victims of his crimes. The applicant ’ s conviction for distribution of propaganda was not reviewed, as it was not challenged.

In November 2005 the applicant was transferred from the Odessa no. 21 SIZO to the Perekhrestivka no. 56 Correctional Colony in the Sumy Region.

On 24 October 2006 the applicant was transferred to the Kryvyy Rig no. 80 Correctional Colony in the Dnipropetrovsk Region, at which a less strict regime was in place.

On the same date (24 October 2006), while staying in the Kharkiv SIZO as a transit point, the applicant started a hunger strike, demanding that the Ukrainian Parliament adopt a political prisoner bill of rights and that he be given the status of a political prisoner. The SIZO administration allegedly refused to register the applicant ’ s declaration of being on hunger strike.

On 28 October 2006 the applicant arrived at the Dnipropetrovsk SIZO by way of transit. However, it was not until 30 October 2006 that the administration registered him as being on hunger strike.

Between 8 and 15 November 2006 the applicant was force-fed on medical grounds.

On 16 November 2006 the applicant arrived at the Kryvyy Rig Colony. According to him, upon arrival, he was told to mop the floors as a sign of his humble submission to the prison administration and severely beaten upon his refusal to do so.

On 17 November 2006 the applicant underwent a medical examination and was found to be suffering from dystrophy (his weight was forty-four kilograms for 170 centimetres in height). He was also diagnosed as suffering from heart and liver insufficiency and prescribed in-patient treatment. On the same date the applicant stopped his hunger strike and continued to receive in-patient treatment for pancreatitis for most of December 2006.

On several occasions various public interest groups, including some from the Russian Federation , complained to the Ukrainian authorities about alleged breaches of the applicant ’ s rights in detention, including the aforementioned submissions, lack of medical assistance and alleged seizure of correspondence.

On 18 October 2007 the applicant was transferred to the Dnipropetrovsk no. 89 Correctional Colony for treatment of tuberculosis in the prison hospital.

On 25 October 2007 the Dnipropetrovsk Department of Punishments denied any allegations that the applicant ’ s rights had been breached.

On 8 November 2007 the Dnipropetrovsk Prosecutors ’ Office also denied that there had been any breaches of the applicant ’ s human rights. It acknowledged the disappearance of some letters which had belonged to the applicant. However, it noted that these letters had been removed by another prisoner while cleaning the cell.

On 23 July 2008 the applicant was released from the hospital, as his tuberculosis was found to have been cured.

Between 20 August and 3 September 2008 the applicant received in-patient treatment in the Colony no. 89 hospital for the second time, as it was suspected that his tuberculosis had returned. However, following several examinations, it was concluded that the applicant had in fact been cured, although some after-effects remained, and continuous medical supervision was advised.

On 22 September 2008 the Dnipropetrovsk Department of Punishments informed the applicant ’ s lawyer that the applicant had received all the necessary medical treatment and at the material time his health was satisfactory.

On 13 May 2009 the Odessa Regional Court of Appeal refused to send the applicant ’ s lawyer in Russia copies of various documents from his case file, referring to the lack of necessary resources for copying and mailing. It further notified the lawyer that he could study the case-file in court and take any extracts he considered necessary, if he so wished.

COMPLAINTS

On 30 December 2005 the applicant lodged the following complaints:

- under Article 3 of the Convention that he had been tortured to extract confessional statements, and that no effective investigation had ensued; the conditions of his detention in the Odessa SIZO had been degrading and medical assistance available to him for injuries sustained at the hands of the police had been inadequate;

- under Article 5 of the Convention that his arrest and detention before trial had been unlawful;

- under Article 6 §§ 1 and 3 of the Convention that his criminal trial had been excessively lengthy and unfair, that the courts had been neither independent nor impartial, and that his right to legal representation had been breached; and

- under Article 6 § 2 of the Convention that the authorities had considered him guilty long before his conviction had been pronounced.

On 24 January 2006 the applicant lodged the following additional complaints:

- under Article 2 of the Convention that his co-defendant B. had been tortured to death by the investigative authorities; that no effective investigation had ensued and that the applicant had constantly feared for his own life during the criminal proceedings on account of the cumulative effect of the conditions of his detention and the conduct of the investigative authorities;

- under Article 6 of the Convention that he had not been able to participate effectively in the trial and had had insufficient time and facilities to prepar e his defence, regard being had to the cumulative effect of the conditions of his detention (including sanitary arrangeme nts and medical assistance), transport to the court premises, limited time to study the case file and difficulty in appointing a lawyer;

- under Article 8 of the Convention that he had been unfairly restricted in his right to correspond with the outside world and receive family visits while under investigation;

- under Articles 5, 9, 10 and 14 of the Convention that his arrest and conviction, which had been based on the fact that he had communist belie f s, had been neither lawful nor necessary in a democratic society; and

- under Article 13 that he had no effective remedies for his complaints under Articles 3 , 5 and 6 of the Convention.

On 29 May 2006 the applicant further added to his application, expanding on his original complaints and lodging additional complaints under Article 6 of the Convention , namely, that the courts had incorrectly ass essed the evidence and incorrectly applied the l aw in the criminal proceedings against him; that his right to question witnesses had been breached ; and that there had been no translation from the Ukrainian language available to him during the hearing in the Supreme Court.

On 9 March 2007 the applicant further added to his application, complaining under Article 3 of the Convention about the conditions of detention in transitory penitentiaries during his transport between the Perekhrestivka and Kryvyy Rig Colonies and the conditions of detention in the Kryvyy Rig Colony , including the insufficiency of medical assistance and ill-treatment by the guards .

On 8 September 2009 the applicant made the final addition to his application, complaining that the Odessa Regional Court of Appeal had interfered with his right of individual petition by refusing to send his lawyer copies of various documents from his case file.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment in breach of Article 3 of the Convention? In particular:

(a) Did the investigative authorities apply physical force to the applicant to urge him to testify while he was in police custody?

(b) Having regard to procedural protection from torture and inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of the procedural obligations under Article 3 of the Convention?

( c ) Were the conditions of the applicant ’ s detention in the Odessa SIZO, in transitory penitentiaries during his transport from the Perekhrestivka to Kryvyy Rig Colony and in the Kryvyy Rig Colony, including physical, sanitary and health-care arrangements, compatible with Article 3 of the Convention standards?

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 (b) and (c) of this provision? In particular:

(a) Were the applicant ’ s rights to participate in the trial effectively, defend himself in person and have adequate time and facilities for the preparation of his defence within the meaning of Article 6 § 3 (b) observed, regard being had to his complaints about the adverse effect of the conditions of his detention and transport to court hearings on his ability to concentrate and his submissions concerning limited time to study the case-file?

(b) Was the applicant ’ s right to legal representation within the meaning of Article 6 § 3 (c) of the Convention observed, regard being had to the fact that he was not represented by a lawyer during the initial stage of the investigation? The Government are invited to comment in particular on the exhaustion of domestic remedies by the applicant in this connection .

3 . Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention about the conditions of his detention, as required by Article 13 of the Convention?