FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45947/06
by Aleksey Leonidovich KOBERNIK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 1st February 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 31 October 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aleksey Leonidovich Kobernik, is a Ukrainian national who was born in 1971 and is currently serving his sentence in prison.
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 20 May 1999 the applicant was arrested on suspicion of having committed a murder and placed in custody.
On an unspecified date the applicant was charged with participating in an armed gang, committing murders, extortion of money, and storing firearms and ammunition without a relevant permit. A number of the alleged accomplices were arrested and charged.
According to the applicant he was ill-treated by the police on several occasions with the purpose of making him confess to the crimes.
In 2001 the case was transferred to the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) for trial.
On 15 December 2003 the Court of Appeal remitted the case for additional investigation, upholding the custodial preventive measure in respect of the applicant. The court found that the charges against the applicant and the other defendants had been too vogue and lacked appropriate substantiation. The decision was appealed against by the prosecution.
On 5 May 2004 the Supreme Court quashed the decision of 15 December 2003 and remitted the case to the Court of Appeal for trial.
Between 2004 and 2006 the Court of Appeal held a number of hearings in the case. In the course of those hearings the applicant and the other defendants submitted that they had been ill-treated at the pre-trial stage of the proceedings. For the purpose of examining those allegations, the Court of Appeal ordered an inquiry which established that there had been no signs of ill-treatment to the applicant. The Court of Appeal further called and examined the relevant police officers; requested the detention facility to submit the medical data concerning the applicant; checked whether the video of the relevant investigative actions and the other evidence could display any signs of ill-treatment. Following those measures, the Court of Appeal concluded that there was no evidence in support of the applicant’s allegations of ill-treatment and rejected them as unfounded.
At one of the hearings the applicant was removed from the courtroom for misbehaviour.
On 22 May 2006 the Court of Appeal found, among other things, that the applicant was guilty of the above-mentioned crimes and sentenced him to fifteen years’ imprisonment with confiscation of his property.
The applicant appealed in cassation and requested the case file for preparation purposes. He was allowed to examine one volume of the case file per day.
On 5 April 2007 the Supreme Court partly quashed the conviction of the applicant as regards the storing of the firearms and ammunition without a relevant permit. It upheld the remainder of the conviction as substantiated. The applicant was present at the hearing.
Throughout the criminal proceedings the applicant was represented by various lawyers. Allegedly, some of them did not provide adequate legal representation.
2. Conditions of detention
During the applicant’s detention in the summer of 1999 he was transported between the detention facilities in overcrowded vans which had heated up in the sun to up to 50 degrees Celsius.
Between 1999 and 2006 he was not provided with appropriate dental treatment. He periodically suffered from high blood pressure.
On 14 June 2007 the applicant was transferred to the Lugansk Pre-Trial Detention Facility (“the Lugansk SIZO”) where he was held until 9 July 2007. In that facility the applicant was held in a cell measuring 15 sq.m., which was located in the semi-basement. The overall number of detainees ranged from 15 to 20 persons. The number of bunks was insufficient and the detainees had to sleep in turns. Some of the detainees were infected with tuberculosis. There were two small windows and no ventilation. The toilet was dirty and offered no privacy. The walls of the cell were warm and covered with mould. There were no mattresses or pillows. The laundry facilities were out of order. The nutrition was inadequate. The sewer system repeatedly broke down and the corridor was periodically flooded with the waste water. The rubbish bins were located three metres from the outer wall of the cell and the bad smell penetrated from the outside. Flies and cockroaches abounded.
3. Conditions of transport in 2007
On 14 June and 9 July 2007 the applicant was transported in overcrowded railway carriages and vehicles. As to railway transportation, the overall number of detainees in the compartment ranged from 12 to 15 persons. The compartments were not ventilated even though it was hot outside. As to the automobile transportation, the applicant and another 20 detainees were packed into the special vehicle, which had heated up in the sun and did not offer sufficient space or ventilation.
B. Relevant domestic law
Pre-Trial Detention Act 1993
Under Article 11 of the Act, detainees must be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 sq. m.
C. Relevant international and domestic materials concerning conditions of detention and transportation
Details on such materials can be found in the judgments of Yakovenko v. Ukraine, (no. 15825/06, §§ 56-61) and Koktysh v. Ukraine (no. 43707/07, §§ 39-42, 10 December 2009).
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that he was ill-treated at the pre-trial stage of the proceedings with the purpose of making him confess to the crimes he had been arrested in connection with.
2. The applicant complains under Article 3 of the Convention that in 1999 the conditions of transportation between Sevastopol and Simferopol were unsatisfactory.
3. The applicant complains under Article 3 of the Convention that during his pre-trial detention he did not receive medical assistance for dental problems and high blood pressure.
4. The applicant complains under Article 3 of the Convention that the conditions of his detention in the Lugansk SIZO were unsatisfactory.
5. The applicant complains under Article 3 of the Convention that the conditions of his transportation between detention facilities in June and July 2007 were unbearable.
6. The applicant complains under Article 5 § 1 (c) of the Convention that his arrest on 20 May 1999 was unlawful.
7. The applicant complains under Article 5 § 3 of the Convention that the length of his pre-trial detention was excessive.
8. The applicant complains under Article 6 § 1 of the Convention that the courts were biased, that they misinterpreted the facts and wrongly assessed the evidence. He also complains that he was removed from one of the hearings before the first-instance court.
9. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted too long.
10. The applicant complains under Article 6 § 3 (b) of the Convention that he did not have sufficient time to examine the case file before the cassation proceedings.
11. The applicant complains under Article 6 § 3 (c) of the Convention that some of his lawyers failed to provide him with effective legal representation.
12. The applicant complains under Article 6 § 3 (d) of the Convention that certain witnesses were not questioned during the trial.
THE LAW
1. The applicant complains that the conditions of his detention in the Lugansk SIZO were unsatisfactory. He further complains that the conditions of his transportation between detention facilities in June and July 2007 were unbearable. The applicant relies on Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
2. The applicant complains that the length of his pre-trial detention was excessive. He relies on Article 5 § 3 of the Convention which provides, in so far as relevant, as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
3. The applicant complains that the criminal proceedings against him lasted too long. He relies on Article 6 § 1 of the Convention which provides, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
4. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
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 unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 3 of the Convention (conditions of detention in Lugansk SIZO and conditions of transportation in June and July 2007), Article 5 § 3 of the Convention (length of pre-trial detention), and Article 6 § 1 of the Convention (length of criminal proceedings);
Declares the remainder of the application inadmissible.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy