GRABOVSKIY v. UKRAINE

June 2011

FIFTH SECTION

Application no. 4442/07
by Nikolay Aleksandrovich GRABOVSKIY
against Ukraine
lodged on 18 December 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Nikolay Aleksandrovich Grabovskiy, is a Ukrainian national who was born in 1969 and is currently serving a sentence in Karkiv Correctional Colony.

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

On 22 July 2005 the applicant was arrested by the police. However, the applicant was not informed of the reasons for his arrest.

On the same day the flat in which the applicant resided and his partner’s flat were searched by the police. In the course of the search, the applicant’s personal belongings, including his passport and other important documents, were allegedly stolen. The applicant also alleges that prior to his arrest a telephone conversation with his partner was intercepted by the police.

Shortly after his arrest the applicant was taken to the Kyivskyy District Police Station of Kharkiv where he was questioned about a robbery committed on the same day. During his questioning the applicant was allegedly beaten up and subjected to psychological pressure (threats to his and his partner’s health and liberty) as a result of which he confessed to having committed the crime. The applicant’s request for a lawyer was refused. He was not examined by a doctor. The applicant alleges that the police did not take him to a court hearing on 26 July 2005 concerning his continued detention so that his injuries would not be revealed.

According to the applicant, when questioned on 25 July 2005 his partner was forced by the investigators to make statements incriminating the applicant.

On 26 July 2005 the applicant was taken to Kharkiv Police Temporary Detention Centre (“the ITT”). Between 28 July and 4 August 2005 the applicant was detained at the police station where he was allegedly deprived of food. According to the applicant, the police officers beat him up in order to extract his confession of having committed several other crimes.

On an unspecified date the applicant was diagnosed with tuberculosis. On 4 August 2005 he was taken to a clinic specialising in the treatment of tuberculosis. During his stay in the clinic the applicant was chained to his bed and was under the constant supervision of guards. The applicant states that the clinic staff examining him noted numerous injuries to his body resulting from police ill-treatment.

On 17 August 2005 the applicant was transferred to Kharkiv Pre-Trial Detention Centre (“the SIZO”), in which he was subjected to beatings (the SIZO guards tried to force the applicant to confess to several other crimes) and inhuman conditions of detention (overcrowding, hygiene issues, and lack of adequate medical assistance).

On 17 October 2005, just before the court hearing on that day, the applicant was allegedly forced by the investigators to sign a declaration waiving his right to a lawyer. At the hearing the applicant was not legally represented. According to him, the trial court refused to call witnesses on his behalf, did not allow him to put to the victim all the questions he wished, and failed to examine his allegations of ill-treatment at the pre-trial stage. The applicant maintained his allegations in the proceedings before the higher courts and also raised them in his subsequent complaints to the prosecutor.

On 18 October 2005 the Kyivskyy District Court of Kharkiv found the applicant guilty of robbery and sentenced him to eight years’ imprisonment.

According to the applicant, on 15 March 2006 the Kyivskyy District Court, instructed by the Kharkiv Regional Court of Appeal, ordered the prosecutor to carry out an inquiry into the applicant’s allegations of ill‑treatment. The prosecutor informed the applicant that his allegations were unsubstantiated. The applicant was not given the opportunity to consult the materials of the inquiry.

On 20 July 2006 the Kharkiv Regional Court of Appeal upheld the applicant’s conviction.

On 3 April 2007 the Supreme Court, sitting in private, found no grounds to examine the case in cassation.

According to the applicant, having had no access to the case documents at the pre-trial stage, he was able to study materials relating only to the court hearings during the subsequent proceedings. Furthermore, he states that he was not given sufficient time to finish studying the materials and that he had difficulties understanding the prosecutor’s decisions issued in Ukrainian because he had limited knowledge of the language. Despite his repeated requests at various stages of the proceedings, the courts refused to appoint him a lawyer. The applicant states that the courts failed to examine these matters in the course of the proceedings.

The applicant alleges that he has been forced to work in Karkiv Correctional Colony to which he was transferred from the SIZO in 2007. In particular, his work has not been remunerated. The applicant has complained about this to various authorities, but to no avail.

The applicant states that because he has no money and the prison authorities refuse to give him documents concerning his case he cannot submit evidence to the Court in order to substantiate his application. He alleges, in general terms, that he has been persecuted by the prison authorities for complaining to the Court.

Acting upon the Court’s instructions, the applicant asked the authorities to give him copies of various documents from his domestic case file, including copies of his appeals and procedural requests. Although the applicant eventually submitted copies of some of the documents, so far he has not received copies of his appeal in cassation, requests for a lawyer or documents concerning his allegations of ill-treatment.

COMPLAINTS

The applicant’s complaints concern the following matters:

(a) alleged ill-treatment by police officers and the SIZO guards with the aim of extracting his confession (invokes Article 3 of the Convention);

(b) alleged ill-treatment of his partner during her questioning by the investigators (invokes Article 3 of the Convention);

(c) allegedly inhuman conditions of his detention in the SIZO (invokes Article 3 of the Convention);

(d) alleged failure of the authorities to investigate his complaints under Article 3 of the Convention (invokes Articles 13 and 14 of the Convention);

(e) alleged coercion to perform forced labour in detention without remuneration (invokes Article 4 of the Convention);

(f) alleged unlawfulness of his arrest and subsequent pre-trial detention and lack of review of the lawfulness of his continued detention (invokes Article 5 §§ 1 (a) and (c), 2, 3 and 4 of the Convention);

(g) alleged unfairness of the criminal proceedings against him, including allegations that the courts incorrectly assessed the evidence and applied the law; that he was not duly informed of the charges against him; that he was not allowed to study the case materials; that the courts used his self‑incriminating statements obtained in the absence of a lawyer; that his right to a lawyer was violated during the court proceedings; that the first‑instance court did not allow him to question witnesses against him or to summon witnesses on his behalf; and that the Supreme Court heard the case in his absence (invokes Article 6 §§ 1 and 3 (a) - (d) of the Convention);

(h) allegedly unreasonable length of the proceedings (invokes Article 6 § 1 of the Convention);

(i) alleged violation of Articles 5, 7 and 13 of the Convention on the same grounds;

(j) allegedly unlawful search of his and his partner’s homes and the allegedly unlawful interception of his telephone conversation (invokes Article 8 of the Convention);

(k) alleged violation of Article 14 of the Convention on the grounds that some of the case materials were not translated into Russian (the only language he understood) and that the authorities’ replies to his complaints were in Ukrainian.

The applicant also complains that he has not been able to obtain copies of documents to substantiate his application.

QUESTIONS TO THE PARTIES

1. Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of petition, as guaranteed by Article 34 of the Convention (see Naydyon v. Ukraine, no. 16474/03, §§ 68‑69, 14 October 2010)? In particular, did the applicant have the opportunity to obtain copies of the documents from his case file and to send them to the Court in order to pursue his application?

Your Government are requested to submit copies of documents pertinent to the applicant’s complaints concerning which the Court puts questions below. This concerns the documents which, as it is noted in the facts, the applicant has not been able to submit to the Court.

2. Did the applicant have a fair hearing in the determination of the criminal charges against him? In particular, having regard to the applicant’s complaints of unfair proceedings, did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

ADDITIONAL QUESTIONS

1. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints of police ill-treatment?

2. Were the investigations into the applicant’s complaints of ill‑treatment by the domestic authorities in accordance with Article 3 of the Convention?

3. Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints concerning the conditions of detention?

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