Communicated on 30 March 2017
FOURTH SECTION
Application no. 33040/08
Pavel Pavlovich UDOVENKO
against Ukraine
lodged on 24 June 2008
STATEMENT OF FACTS
The applicant, Mr Pavel Pavlovich Udovenko, is a Ukrainian national, who was born in 1966 and lives in Yalta.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Criminal proceedings against the applicant
On 21 March 2006 the applicant was arrested on suspicion of a number of violent crimes committed against two of his former girlfriends and placed in a police detention facility where he was held with some interruptions until 18 April 2007.
On 2 March 2007 the Yalta Court convicted the applicant of torture, extortion, robbery, witness intimidation and unlawful seizure of official documents and sentenced him to ten years’ imprisonment.
On 15 May 2007 the Crimea Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction.
On 20 December 2008 the Supreme Court quashed the Court of Appeal’s ruling and remitted the case against the applicant for a new hearing on appeal.
On 4 June 2009 the Court of Appeal again upheld the applicant’s conviction.
On 16 September 2010 the Supreme Court discontinued proceedings against the applicant for witness intimidation and unlawful seizure of documents as time-barred and upheld the rest of his conviction and sentence.
On 1 February 2016, having served his sentence, the applicant was released.
B. Events at the Berdychiv Correctional Colony
On 3 February 2008 the applicant arrived at the Berdychiv Correctional Colony no. 70 in Zhytomyr Region (“the prison”) to serve his sentence. He had with him about a thousand pages of documents related to various legal proceedings. A domestic investigation subsequently conducted by the regional prosecutor’s office (see below) established that the prison guards seized the documents and put them in storage since their volume exceeded the number of copies (ten) which prisoners were allowed to keep with them. The applicant was informed that he would be given access to the documents on request if he needed them for preparation of an application to the European Court of Human Rights.
According to the applicant, following this seizure, he had no adequate access to the documents. In particular, he could access and use them for drafting his application only with permission from the prison governor, which had been granted only once, and under the supervision of a prison guard.
On 12 February 2008 forty of his documents were returned to the applicant by the prison administration but the applicant alleges that many documents needed for his application to the European Court were not returned.
On 3 July 2008 the applicant gave a power of attorney to his mother authorising her to represent him in the proceedings before the Court.
On an unspecified date the applicant’s mother asked the prison administration for copies of the documents offering to pay for them.
On 18 August 2008 the administration responded in the negative saying that there were no regulations in place governing the question of how such copies could be made and paid for.
On 1 December 2008 the Zhytomyr regional prosecutor’s office refused to institute criminal proceedings against the prison officials for abuse of power in connection with the seizure of the applicant’s documents and with the arrangements made for his access to them. It found that the seizure of the documents and the arrangements for access to them were in accordance with applicable regulations.
On 8 January 2009 the applicant had a visit from his mother. It appears that in the course of it he tried to pass to her certain documents, supposedly related to his application to the Court, but was not allowed to.
On 13 and 14 January 2009 the applicant’s lawyer, Mr S., sought to visit him for a consultation in prison. According to the applicant, this consultation was related to his application and, in the course of it, he wished to pass to his lawyer certain related documentation. However, the consultation did not take place because the applicant and his lawyer believed that the arrangements offered by the prison administration did not permit confidentiality of their communication. On the above dates the lawyer filed complaints with the prison governor’s office stating that he had been offered to communicate with the applicant not directly but only through an intercom device through a glass partition without the possibility of passing documents between them. The lawyer considered that such conditions made it impossible for him to fulfil his mandate and demanded to see the applicant directly in a separate room with a table and chairs to make it possible for him to do his job. It is unclear whether the administration responded to the above complaints. According to the applicant, the intercom device mentioned above was subject to monitoring by prison staff.
The prison administration offered to the applicant the possibility of submitting all the documents he wished to pass to his lawyer to the administration first; the latter would have subsequently forwarded them to the lawyer. However, believing that the documents would be subject to review and that there would be no guarantee that they would be transmitted in a timely fashion, the applicant refused.
The applicant alleges that because of his conflict with the administration over his application to the European Court of Human Rights the administration imposed on him a number of disciplinary sanctions, including placement in punishment cells.
On 5 April 2009 the applicant was transferred from the prison to the Simferopol Pre-Trial Detention Centre to be able to attend the rehearing of his case on appeal.
On 10 April 2009 the Zhytomyr regional prosecutor’s office wrote to the applicant’s mother, in response to her complaint, that the prison administration’s actions concerning her and the applicant’s lawyer’s visits and access to documentation had complied with the relevant domestic regulations. All the disciplinary sanctions had been imposed on the applicant on objective grounds for infractions against the prison regime and there was no evidence that the prison administration had pressured or harassed him.
COMPLAINTS
The applicant complains under Article 34 of the Convention that in 2008 and 2009 the administration of the of Berdychiv Correctional Colony no. 70 hindered his right of individual application, in particular through restrictions on his contact with his representatives and on access to documents related to his case and through imposition of disciplinary sanctions on him.
QUESTION TO THE PARTIES
Has there been in the present case in 2008 and 2009 any hindrance by the State of the effective exercise of the applicant’s right of individual application, ensured by Article 34 of the Convention, in the course of the applicant’s detention in the Berdychiv Correctional Colony no. 70 on account of: (i) restrictions imposed on the contact between the applicant and his representatives; (ii) seizure of the applicant’s documents and restrictions imposed on access to them; and (iii) imposition of disciplinary sanctions on him?
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