ALIEV v. UKRAINE (No. 2)

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33617/02
by Pakhrudin Mukhtarovich ALIEV
against Ukraine (no 2)

The European Court of Human Rights (Fifth Section), sitting on 14 October 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 21 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision of the Russian Government not to intervene in the proceedings in accordance with Article 36 § 1 of the Convention,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pakhrudin Mukhtarovich Aliev, is a Russian national who was born in 1968 and is currently detained in the Zhytomyr Prison No. 8 in Ukraine. He was represented before the Court by Mrs S. Saypudinova, a lawyer practising in Saratov, Russian Federation, who is also his wife. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.

A. The circumstances of the case

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

1. Background to the case

On 10 February 1997 the applicant was sentenced to death by the Supreme Court of the Autonomous Republic of Crimea for planning and carrying out organised crime and on several counts of aiding and abetting murder and attempted murder. On 15 May 1997 the sentence was upheld by the Supreme Court of Ukraine. The applicant was on death row until 8 June 2000 when the Supreme Court of the Autonomous Republic of Crimea replaced the death sentence by life imprisonment.

On 4 October 1999 a Court Delegation carried out a fact-finding visit to the Simferopol Pre-Trial Detention Centre No. 15 (Сімферопольський слідчий ізолятор № 15, hereinafter “the Simferopol SIZO”), where the applicant was detained at the time, in connection with his application (no. 41220/98) concerning the applicant's conditions of detention and treatment on death row.

2. The facts of the case as submitted by the applicant

In a faxed letter of 21 October 1999 the applicant's representative informed the Court that after the Court Delegation had left the Simferopol SIZO, members of the SIZO administration had started to treat the applicant in an inappropriate manner: they had exerted psychological pressure on him, had provoked and regularly insulted him asking to carry out impossible tasks, and had carried out daily inspections of his cell, leaving items, in particular food, on the floor. On 8 October 1999, when the applicant returned from his daily exercise, his cell was in complete disorder, with his personal belongings, including food, being scattered on the floor. The applicant refused to take food and to take off his handcuffs until the SIZO Governor arrived. In his submissions of 9 January 2003 the applicant stated that he had been handcuffed with hands behind his back. As nobody had come after three hours, the applicant opened the handcuffs with a match and started to clean his cell. Soon after, the SIZO Governor arrived and began arguing with the applicant. Afterwards two “Zarya” stun grenades were thrown into the applicant's cell, although the national legislation permits only the use of “Cheremukha” tear gas. The applicant was overpowered by the grenades and fainted. The SIZO guards were unable to open the door of the applicant's cell for some time, the whole floor was poisoned and inmates had to be removed from their cells for two hours. One of the SIZO guards, D., who took part in the operation, recorded the events on video. The SIZO guards beat the applicant, put handcuffs on his hands and legs, and placed the applicant in the disciplinary cell in the basement, where he stayed until 23 October 1999. The applicant worn only shorts and spent the night from 8 to 9 October 1999 with his legs and arms shackled, which had left marks. He was not provided with a mattress, a pillow, a blanket or sheets, he did not have any hygienic facilities, could not turn on running water, was fed only with bread and water, and was not allowed to go for a walk. The applicant's lawyer did not receive permission to visit the applicant until 18 October 1999. During the visit which took place on that day, the applicant was handcuffed and the SIZO guards were present.

The applicant submitted undated photographs of him allegedly in the disciplinary cell. The part of the cell visible has white painted walls, a concrete floor, a small iron-barred window, a bed, which is locked up against the wall, a small table and a stool built into the wall, and an Asian-type uncovered toilet. Some moisture spots are visible on the floor and on the walls.

In her submissions to the Court of 21 October 1999 the applicant's lawyer stated that “on 18 October 1999, following several complaints to the prosecutor's office and to the Department for the Enforcement of Sentences, the applicant was provided with a pillow and a mattress with dirty and stinking sheets, but no blanket”.

In an undated letter received by the Court on 17 November 1999 the applicant stated that “after the Court Delegation visit I complained to the Prosecutor of the Autonomous Republic of Crimea and to the Prosecutor General of Ukraine about inhuman treatment but my complaints were not answered”. The applicant did not provide further details of these complaints (including dates).

3. The facts of the case as submitted by the Government

The Government submitted that the searches referred to by the applicant had been carried out in accordance with the requirements of the national law. In particular, on no occasion had the personal belongings or food of the detainees been damaged. On 8 October 1999 at approximately 1.20 p.m. the applicant returned from his daily exercise. When P., one of the SIZO guards, wanted to unlock the applicant's handcuffs, the applicant resisted, tried to get hold of the handcuffs and their keys, and injured P. The Government submitted a copy of the report of 8 October 1999 prepared by doctor N., according to which two fingers on P.'s hand were swollen and he had strained ligaments. Consequently Ye., the SIZO Governor, decided to place the applicant in a disciplinary cell for 15 days for violations of the imprisonment regulations. This decision was announced to the applicant by Ye. in the presence of a supervising prosecutor. The applicant was examined by a doctor who confirmed that the applicant was fit for placement in the disciplinary cell. At 5.00 p.m., when the applicant was taken out of his cell, he resisted and, given that the applicant was fit and adept at hand-to-hand combat, the guards were forced to use “Cheremukha” tear gas on him and to handcuff him in order to avoid further injuries. The Government stated that the SIZO inventory had never included “Zarya” stun grenades. The applicant was subsequently examined by the SIZO paramedic, who did not find any injuries. Since the applicant continued to behave violently he remained handcuffed until 6 a.m. the following day. The applicant stayed in the disciplinary cell until 23 October 1999. The medical staff of the SIZO checked the sanitary state of the cell every day. According to the Government at the time of the applicant's detention the disciplinary cell was equipped with a metal bed with a wooden plank, which was locked up against the wall in the day, a table and a chair fixed to the floor, a toilet, a wash basin and a shelf. The floor of the cell was concrete and the window was iron-barred. On 15 October 1999 the applicant was examined by the doctor who did not establish any health problems. The Government provided a copy of the medical record dated 15 October 1999 according to which the applicant had not complained about any health problems. On 18 and 22 October 1999 the applicant was visited by his wife, who is also his lawyer. Neither the applicant nor his lawyer complained to any State authorities about the events of 8 October 1999.

B. Relevant domestic law

1. Constitution of Ukraine, 28 June 1996

The relevant extract from the Constitution reads as follows:

“Article 28

Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”

2. Criminal Code, 1960 (in force at the material time)

Article 166 of the Code provides:

“Criminal liability for excess of power

Excess of authority or official powers, that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which ... includes violence, the use of arms, painful or degrading behaviour towards the victim shall be punishable ....”

3. Criminal Procedure Code, 1960

According to Article 97, the prosecutor or the investigation authority is under an obligation to consider complaints about committed crimes including cases which are not under their jurisdiction. Following such complaint the prosecutor or the investigation authority should within the three-day limit institute or refuse to institute criminal proceedings, or transfer the complaint to a relevant authority.

According to Article 99-1, the refusal to institute criminal proceedings can be appealed against to the court.

4. Correctional Labour Code, 1970 (in force at the material time)

According to Article 44, convicted persons could lodge complaints with State bodies. In particular, complaints directed to the prosecutor were not subject to any censorship and were to be sent to the addressee within one day. A prisoner was to be informed of the results of consideration of any complaints, against acknowledgment of receipt. Article 128 provided that employees of the correctional institutions who treated convicted persons in a cruel or degrading manner, were subject to disciplinary or criminal responsibility.

Article 81 of the Code provided inter alia that in case of physical resistance handcuffs and tear gas could be used on convicted prisoners.

5. Prosecution Service Act

According to paragraph 1 of Article 12, the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts.

Under paragraph 1 of Article 44 the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred.

Article 45 provides that decisions and instructions of the prosecutor are obligatory and should be enforced immediately.

6. Temporary Regulation on Detention of Convicted Persons on Death Row in Pre-Trial Detention Centres, 25 June 1999 (in force at the material time)

According to this Regulation convicted prisoners could be placed in the disciplinary cell for up to 15 days for breaches of internal regulations.

COMPLAINTS

The applicant initially complained of ill-treatment to which he had been subjected in the Simferepol SIZO on 8 October 1999 which consisted, first, in him being verbally attacked, insulted and provoked by members of the SIZO administration who searched his cell and made it untidy; and secondly, in the throwing of two “Zarya” stun grenades into the applicant's cell when he complained of the disorder there. The applicant also complained about the circumstances and conditions of his detention in the disciplinary cell. He further complained under Article 34 of the Convention, without providing any further details, that the SIZO administration did not transfer his complaints to the Court.

After the application had been communicated to the respondent Government, the applicant raised further complaints in his application form of 9 January 2003. In particular, he complained under Article 2 of the Convention that on 8 October 1999 the administration of the Simferopol SIZO had intended to kill him by poisoning him with gas. The applicant further complained about violations of Article 6 of the Convention during the consideration of the criminal case against him and in the course of proceedings concerning the substitution of a sentence of life imprisonment for the initial death penalty. He also complained about the conditions of detention in the Zhytomyr Prison No. 8, to which he had been transferred in 2002.

THE LAW

A. The scope of the case

In the Court's view, the complaints raised by the applicant after communication of his case to the respondent Government (see the second paragraph of the “Complaints”, above) are not elaborations of the applicant's original complaints on which the parties have commented. In particular, the applicant complained about the conditions of his detention in Zhytomyr Prison No. 8, in respect of the period after his transfer there, in 2002. As the complaints related to conditions in a different establishment and at a different time, the applicant was invited to lodge a new application in connection with these complaints. He did not do so. The Court does not consider that it is necessary to take up those complaints in the context of the present application (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

B. Article 3 of the Convention

The applicant contended that he had been ill-treated in Simferopol SIZO in the period from 8 October to 23 October 1999, and he complained about the conditions of detention in a disciplinary cell during that period.

The Government maintained that the applicant had failed to exhaust effective domestic remedies since he had not complained to any national body about his alleged inhuman treatment on 8 October 1999, about the decision to place him into the disciplinary cell or about the conditions of detention in this cell. They stressed that, while the applicant still had been in the disciplinary cell, his representative had complained directly to the Court without seeking any redress before the domestic authorities. The Government put forward two possibilities of such redress. Firstly, the applicant could have lodged a complaint before the national court under the civil procedure. Secondly, the applicant could have complained to a supervising prosecutor, who was obliged to conduct an investigation into such complaint. The applicant could have lodged such complaint by himself or through his lawyer with whom he met on 18 and 22 October 1999.

The applicant disagreed and submitted that the remedies proposed by the Government were not effective and that he had had no possibility while detained in the disciplinary cell to lodge any complaints.

The Court notes that the applicant's complaints under Article 3 of the Convention concern two different groups of events. The first covers the applicant's alleged ill-treatment by the guards and administration of the SIZO including the circumstances of his placement into the disciplinary cell. The second is related to the conditions of the applicant's detention in the disciplinary cell.

The Court will examine the admissibility of these complaints separately.

1. Alleged ill-treatment of the applicant

The applicant complains that he was ill-treated in the events which led to him being put in a disciplinary cell on 8 October 1999. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see e.g. Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003).

The Court notes the Government's contention that one avenue open to the applicant would have been to complain to a prosecutor, and also notes that in the Naumenko case (Naumenko v. Ukraine, no. 42023/98, § 136, 10 February 2004) such a remedy was found to be effective. The applicant in the present case stated that he had complained to the prosecutors about his ill-treatment, but he has not submitted copies of or any details about the content of such a complaint. In particular, although the applicant's lawyer stated that she complained to the prosecutors and the Department for the Enforcement of Sentences after the applicant had been placed in the disciplinary cell, she did not suggest that she referred to the ill-treatment issues, as opposed to the question of the conditions of detention.

The Court considers that the applicant has failed to show that an application to the prosecutors would not have been an effective remedy in the present case, and he has failed to show that he pursued that remedy. Moreover, the Court's subsidiary role under the Convention does not allow it to reach any conclusion as to the reliability of the applicant's contentions unless it has the benefit of the comments of the competent authorities on his complaints (Vinokurov v. Russia and Ukraine (dec.), no. 2937/04, 16 October 2007).

The Court finds, therefore, that these complaints must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

2. Conditions of the applicant's detention in the disciplinary cell

The Court recalls that in the case of Khokhlich (Khokhlich v. Ukraine, no. 41707/98, 29 April 2003) it found that several complaints about the conditions of detention by the applicant and his mother filed with the governor of the relevant detention facility were sufficient to make the authorities aware of the applicant's situation and to give them an opportunity to examine the conditions of the applicant's detention and, if appropriate, to offer redress. Similar conclusions were reached by the Court in a number of other cases (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001‑XI (extracts); Melnik v. Ukraine, no. 72286/01, § 70, 28 March 2006). However, in the case of Vinokurov (Vinokurov v. Russia and Ukraine (dec.), no. 2937/04, 16 October 2007), the Court rejected the applicant's complaints about the conditions of detention in the Lugansk SIZO since the applicant had failed to apply to any competent authority with complaints about his detention conditions and did not claim that he had made any oral submission to this effect.

According to the applicant, while detained in the disciplinary cell, he had been unable to lodge any complaints. The Government did not provide any comments in this respect.

However, the Court notes that during this period the applicant had been twice visited by his wife, who was his lawyer and who had filed complaints on his behalf to the Department for the Enforcement of Sentences. Referring to the above findings, the Court further notes that the applicant failed to provide any details concerning the content of these complaints.

Assuming, therefore, that bringing complaints concerning the conditions of detention in the disciplinary cell to the attention of the authorities would have a remedy to be exhausted within the meaning of Article 35 § 1 of the Convention, the applicant has failed to show that he – in particular through his wife and lawyer – pursued such a remedy. Furthermore, as already mentioned above, in accordance with the case-law on exhaustion of domestic remedies, the applicant is obliged to ventilate his complaints through any of the above-mentioned channels or any other competent authority or official before bringing them before the Court, for it to examine contentions as to accessibility and effectiveness of such remedies. In the absence of the comments of the competent authorities on the applicant's complaints, it is unable to reach any kind of conclusion as to the reliability of the applicant's contentions as to compliance with the requirements of exhaustion of domestic remedies.

The Court finds, therefore, that the applicant's complaints concerning the conditions of his detention in the disciplinary cell must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

C. Article 34 of the Convention

The Court notes that it does not follow from the materials submitted by the parties that the applicant had been in any way hindered from lodging application before the Court or submitting further materials in support of his complaints. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia WesterdiekRait Maruste
RegistrarPresident

 

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