FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30628/02
by Ivan Dmytrovych UKHAN
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 31 July 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ivan Dmytrovych Ukhan, is a Ukrainian national who was born in 1961 and is currently serving a prison sentence in Ukraine.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The death of the applicant’s sons
In 1995, two sons of the applicant died in a house fire. According to the applicant, the fire was laid deliberately but the authorities did not carry out any investigation into this incident.
2. The applicant’s detention between 1997 and 2003
On an unspecified date in 1997, the applicant was detained on suspicion of having caused grievous bodily harm. By decision of the Gorodnyshche District Court of the Cherkassy region of 21 May 1997, upheld on appeal by the Cherkassy Regional Court on 12 August 1997, the applicant was convicted of inflicting grievous bodily harm and sentenced to ten years’ imprisonment.
Until October 2002 the applicant was detained in the Vynnitsia Penitentiary no. 86 where, on 4, 19 and 22 October 1998, he was allegedly subjected to ill-treatment by prison officials. He did not file any criminal or disciplinary complaint against these officials.
According to the applicant, the sanitary conditions in this prison were poor in that dishes used by inmates were not adequately washed after use, thus entailing an increased risk for detainees of contracting tuberculosis. The detainees were further woken up very early in the morning and assembled for inspection purposes in the prison yard without due regard being paid to weather conditions.
In October 2002 the applicant was moved to Penitentiary no. 113, a prison with a less strict regime in which, according to the applicant, the food supplied and the living conditions were inadequate; the administration could “sell a prisoner as a slave” and medical assistance was available only if detainees or their families would and could pay for it.
On 6 June 2003 the applicant was conditionally released from prison.
3. Events after the applicant’s release on 6 June 2003
After his release, the applicant took up residence in the village of Nekhvoshch, the Cherkassy region, where local police officers – allegedly out of personal bias vis-à-vis the applicant – accused him of theft and hooliganism. On 25 October 2003 the police searched his home. On 28 October 2003 the applicant was arrested and taken to the Korsun‑Shevchenko town police station where he was held until 31 October 2003. During his detention there, he sustained several injuries (broken ribs and injuries to his scull, left eye and right kidney) allegedly due to ill-treatment at the hands of police officers. On 6 November 2003, after having apparently been transferred on 31 October 2003 to the local Ward of Temporary Detention, the applicant was brought to the Cherkassy Regional Investigative Isolation Unit SIZO no. 30 (hereafter “the Cherkassy SIZO”). However, due to his severe injuries, this institution refused to admit him. The applicant was then taken to the Korsun‑Shevchenko town police station where he stayed until 7 November 2003 and where he was allegedly once more subjected to ill-treatment by police officers. On 7 November 2003, he was taken to the Cherkassy SIZO where he was admitted.
On an unspecified date, the applicant filed a complaint about having been ill-treated by the police with the Korsun‑Shevcheko District Prosecutor’s Office, who undertook preliminary inquiries into the applicant’s allegations. On 26 January 2004 the Prosecutor’s Office decided not to institute criminal proceedings against the police officers.
On 20 December 2004 the Korsun-Shevcheko District Court of the Cherkassy region convicted the applicant of hooliganism, acquitted him of theft, and sentenced him to six and a half years’ imprisonment. On 29 March 2005 the Cherkassy Regional Court of Appeal upheld this decision. The applicant’s subsequent appeal in cassation with the Supreme Court is currently still pending.
4. The applicant’s detention after 7 November 2003
The applicant states that the administration of the Cherkassy SIZO, where he was held until May 2005, did not provide him with any medical examination or treatment. According to the applicant, this was to conceal the fact that his various health problems (severe headaches and paralysis of the left side of his body) resulted from having been ill-treated whilst held in police custody.
On an unspecified date in May 2005, the applicant was transferred to the Vinnytsia Penitentiary no. 81. In the applicant’s opinion, the conditions of detention there were unsatisfactory in that the prison authorities failed to provide him with adequate facilities to attend to his reduced mobility. Although, due to his left side paralysis, he was unable to move independently, any inmate who tried to help him was punished.
On 25 August 2005 the applicant went on hunger-strike to protest against his situation. On 1 September 2005, in the context of an intention to transfer the applicant to a disciplinary cell, the prison doctor drew up a medical report stating that the applicant’s mobility was not impaired and that he was fit for detention in the disciplinary cell. On the same date the Governor of Penitentiary no. 81 ordered the applicant’s placement in a disciplinary cell for a period of ten days. The applicant was subsequently transferred to a disciplinary cell where he stayed until 13 September 2005.
According to the applicant, he was not provided with adequate living conditions in that the disciplinary cell contained no furniture whatsoever. He further alleged that he was force-fed twice per day.
On 23 October 2005 the applicant was transferred to the Kirovograd Penitentiary no. 6 and, four days later, to the Dnipropetrovsk Penitentiary no. 45, which is a detention facility designated for inmates suffering from serious disabilities.
COMPLAINTS
The applicant complains that no investigation was carried out into the death of his sons in 1995.
Invoking Articles 3 and 5 of the Convention, the applicant further complains:
- of having been ill-treated on 4, 19 and 22 October 1998 by prison officials in the Vynnitsia Penitentiary no. 86;
- of his conditions of detention in the Vynnitsia Penitentiary no. 86 and Penitentiary no. 113;
- of having been ill-treated in October-November 2003 by the police during his detention in the Korsun-Shevchenko town police station;
- of his conditions of detention and lack of medical care and assistance in the Cherkassy SIZO; and
- of his conditions of detention and lack of medical care and assistance in the Vynnitsia Penitentiary no. 81, including his period of detention in a disciplinary cell.
The applicant also complains that, as regards the ill-treatment suffered, his conditions of detention and lack of medical care and assistance whilst detained, he did not have an effective remedy within the meaning of Article 13 of the Convention.
Relying on Articles 6 and 13 of the Convention, the applicant complains that, in the criminal proceedings taken against him in 1997 and 2003, he did not receive a fair trial.
The applicant lastly complains that the search of his home on 25 October 2003 was unlawful.
THE LAW
1. The applicant’s treatment by the police during his stay in the Korsun-Shevchenko town police station and the conditions of his detention in various detention centres
The applicant complains that he was ill-treated during his detention in the Korsun-Shevchenko town police station, and complains of the conditions of his detention in the Vynnitsia Penitentiary no. 86, Penitentiary no. 113, the Cherkassy SIZO and the Vynnitsia Penitentiary no. 81, respectively. He invokes Articles 3 and 5 of the Convention. The Court finds that his submissions could raise an issue under Article, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The applicant further complains that, in respect of these complaints under Article 3, he did not have at his disposal effective domestic remedies, as required by Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
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 Court, to give notice of this part of the application to the respondent Government.
2. The remainder of the complaints
a.The applicant complains that the authorities have failed to conduct any investigation into the circumstances of the death of his sons in 1995.
On the assumption that the applicant seeks to rely on Article 2 of the Convention which guarantees the right to life, the Court notes that this complaint relates to the period prior to 11 September 1997, which is the date of the entry into force of the Convention with respect to Ukraine. This part of the application is therefore incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4.
b.The applicant further complains under Article 3 of the Convention that, on 4, 19 and 22 October 1998, he was subjected to ill-treatment by prison officials in the Vynnitsia Penitentiary no. 86.
The Court notes that the applicant has not filed with the competent authorities a criminal or disciplinary complaint against the prison officials concerned. Furthermore, if it is assumed that at the material time the applicant did not have an effective domestic remedy at his disposal in this respect, the Court reiterates its constant case-law that, where no domestic remedy is available, the six months’ period referred to in Article 35 § 1 of the Convention runs from the date of the act alleged to constitute a violation of the Convention (see Al Akidi v. Bulgaria (dec.), no. 35825/97, 19 September 2000). The present application, however, was lodged on 31 July 2002, which is more than six months after the events complained of. It follows that this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
c.The applicant also complains under Article 6 of the Convention which guarantees the right to a fair trial, taken alone and together with Article 13 of the Convention, that he did not have a fair hearing in the criminal proceedings brought against him in 1997 and 2003, and that the search of his home on 25 October 2003 was unlawful.
The Court notes that, on 24 October 2000, the Court sitting as a Committee of three judges declared inadmissible application no. 60076/00, in which the applicant complained of the fairness of the criminal proceedings brought against him in 1997. The Court finds that the applicant’s present complaint is essentially the same as the complaint examined in application no. 60076/00 and that it contains no relevant new information. Consequently, this part of the application must be rejected, in accordance with Article 35 §§ 2 and 4.
d.As regards the applicant’s complaints relating to the fairness of the criminal proceedings taken against him in 2003, the Court notes that, according to the applicant’s submissions, these proceedings are currently still pending before the Supreme Court. It follows that these complaints are premature (see Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004) and must be rejected, pursuant to Article 35 §§ 1 and 4.
e.On the assumption that the applicant seeks to rely on Article 8 of the Convention in respect of the allegedly unlawful search of his home on 25 October 2003, the Court notes that this search was carried out in the context of the criminal investigation against applicant which resulted in the criminal proceedings which were subsequently taken against him in 2003. In the absence of any indication in the case-file that the applicant has raised this complaint in the criminal proceedings which are still pending or in any other proceedings, the Court is of the opinion that this part of the application must also be rejected, pursuant to Article 35 §§ 1 and 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 3 and 13 of the Convention concerning his alleged ill-treatment during his detention in the Korsun-Shevchenko town police station, and concerning the conditions of his detention in the Vynnitsia Penitentiary no. 86, Penitentiary no. 113, the Cherkassy Regional Investigative Isolation Unit SIZO no. 30 and the Vynnitsia Penitentiary no. 81;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy