SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
3 Applications against Ukraine
No. 60726/00 Sergey IVANCHENKO
No. 22947/02 Andrey SAMOYLOV
No. 22966/02 Vladimir IVANCHENKO
The European Court of Human Rights (Second Section), sitting on
17 February 2004 as a Chamber composed of
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above applications nos. 60726/00, 22947/02 and 22966/02 lodged on 3 April 2000 and 27 May 2002, respectively,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Sergey Vladimirovich Ivanchenko (hereafter referred to as “SVI”), is a Ukrainian national, who was born in 1956 in the village of Krasnaya Poliana, Russia, and is currently serving his prison sentence in penitentiary No. 53 (the Olshansk penitentiary).
The second applicant, Mr Andrey Mikhaylovich Samoylov (hereafter “AMS”), is a Russian national, who was born in 1970 in the village of Gigant, the Rostov Region of Russia, and is currently serving a prison sentence in penitentiary No. 52 (the Yelenovka Penitentiary).
The third applicant, Mr Vladimir Vladimirovich Ivanchenko (hereafter “VVI”), is a Russian national, who was born in 1970 in Salsk, Russia, and is currently serving his prison sentence in penitentiary No. 100 (the Kharkiv Region). He is the brother of the first applicant.
The applicants are represented before the Court by Mr Valeriy P. Romanov, a human rights activist from Israel, and Ms Inna Ivanchenko, an assistant to a member of the Ukrainian Parliament (The Verkhovna Rada of Ukraine).
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Criminal investigation following the terrorist attack of 2 October 1999
On 2 October 1999 unidentified persons detonated a hand grenade in Kryvyi Rig allegedly with the aim of assassinating Ms Natalya Vitrenko, a candidate for the presidential elections. About 35 persons were injured as a result of the explosion.
On the same date, police officers from the Kryvyi Rig Department of the Ministry of the Interior arrested the applicants AMS and VVI on suspicion of attempting to assassinate a Government official.
On the same day the applicant SVI left Kryvyi Rig for Russia, allegedly to visit his parents.
On 2 and 3 of October 1999 the Kryvyi Rig Department for Combating Organised Crime of the Ministry of the Interior (the “OCD”) searched SVI’s house. His house remained in the control of the police for further search and seizures.
On 3 October 1999 the Kryvyi Rig Prosecution Service ordered a nation-wide search for SVI.
On 4 October 1999 the OCD searched the house of SVI’s parents in the Russian Federation.
On 5 October 1999 the investigation was transferred from the jurisdiction of the Ministry of the Interior to the State Security Service (the “SBU”).
On 11 October 1999 the SBU investigators served a bill of indictment on VVI and AMS, charging them with attempting to assassinate a Government official.
On 14 October 1999 VVI and AMS were transferred from the Kryvyj Rig Detention Centre to the SBU’s Investigative Detention Centre in Kyiv.
On 25 December 1999 the Deputy Chairman of the Parliament informed the applicants’ representative, Mr Romanov, that a special parliamentary commission would investigate the grenade attack of 2 October 1999.
On 25 December 1999 SVI was apprehended in Moscow on suspicion of attempting to assassinate a Government official. On 31 December 1999 he was transferred to the SBU Detention Centre in Kyiv.
2. The complaints of the applicants and their relatives about the unlawfulness of the investigation and the conditions of detention pending trial
On 15 December 1999 General Prosecution Service of the Russian Federation informed the mother of the first and third applicants, Mrs Zoya O. Ivanchenko (hereafter “ZOI”) that the criminal investigation into her sons’ involvement in the grenade attack in Kryvyj Rig was pending before the General Prosecution Service of Ukraine. It also mentioned that, in accordance with Article 1 of the Commonwealth of Independent States (Співдружність Незалежних Держав) Convention on Legal Assistance in Civil, Family and Criminal Cases, they have the same rights to defend themselves as Ukrainian citizens.
In December 1999 ZOI complained to the General Prosecution Service (the “GPS”) about her sons’ alleged ill-treatment by police officers. On
27 December 1999 the GPS (Генеральна Прокуратура України) rejected these complaints as unsubstantiated.
On 3, 8 and 21 January 2000 SVI complained to the Prosecutor General that the investigators dealing with his criminal case lacked impartiality and had violated the Constitution and the Code of Criminal Procedure on a number of occasions. He also complained about the refusal of the SBU Detention Centre to provide his partner, Ms Inna I. Chirchenko, with a letter of authority from him, allowing her to manage his affairs.
On 17 January 2000 SVI lodged a request with the SBU Investigative Department, seeking to have his partner appointed as his representative in the case. On 19 January 2000 this request was refused since his partner had already been questioned by the investigative authorities as a witness and therefore, in accordance with Article 61 of the Code of Criminal Procedure, could not participate in the case as his defender.
On 20 January 2000 SVI complained to the Secretary General of the Council of Europe and to Mr Borys I. Oliynyk, a Member of Parliament and the Head of the Parliamentary delegation of Ukraine to the Parliamentary Assembly of the Council of Europe, about the SBU’s allegedly unlawful refusal to issue a letter of authority to Ms Chirchenko. On 24 January 2000 the SBU Detention Centre informed the applicant that the aforementioned complaints had not been sent to the designated addressees, but had been transferred to the Prosecution Service for further review.
On 26 January 2000 Ms Chirchenko requested the SBU Investigative Department’s permission to meet SVI.
On 28 January 2000 the SBU Investigative Department rejected her application, since Article 162 of the Code of Criminal Procedure (the “CCP”) gives discretion to the investigative body in deciding whether or not to allow a meeting with the suspect. On the same day, the GPS refused Ms Chirchenko’s participation in the case as his representative, since she was not an advocate and had already participated in the preliminary investigation of the case as a witness.
On 28 January 2000 the SBU Investigative Department refused a request by ZOI to visit her sons and to hand over food and personal belongings. It also refused Ms Chirchenko’s requests to visit SVI.
In January 2000 SVI lodged complaints with the Tsentralny District Court of Kryvyj Rig, seeking to quash the prosecutor’s arrest warrant of 3 October 1999. On 14 February 2000 the court rejected the applicant’s claims as unsubstantiated.
In February 2000 the applicants complained to the Prosecution Service of the Dnipropetrovs’k Region about the police officers’ allegedly unlawful actions in the course of the investigation and the manner in which they had conducted proceedings. They also sought to initiate criminal proceedings against them. On 16 February 2000 the Prosecution Service of the Dnipropetrovs’k Region refused to initiate criminal proceedings against the officers.
On 8 and 10 February 2000 SVI requested a meeting with his advocate, and that his partner and daughter represent him in the proceedings. On 2 and 11 February 2000 the SBU Investigative Department rejected these requests since the applicant’s partner and daughter were not qualified as advocates. Moreover, the former had been questioned as a witness at the preliminary stages of the investigation.
On 22 February 2000 the Prosecutor General extended the period of SVI’s detention pending trial to five months (until 25 May 2000).
On 3 March 2000 SVI was transferred to the Kyiv Detention Centre No. 13 of the Ministry of the Interior. On the same date he complained to the Pechersky District Court of Kyiv about the unlawfulness of the provisions of the Law on the Pre-Trial Detention. On 23 March 2000 the Pechersky District Court of Kyiv refused to consider these complaints as falling outside its jurisdiction.
On 16 and 20 March and 17 April 2000, the SBU Investigative Department and the GPS dismissed the further requests of Ms Chirchenko to visit SVI, stating that no such meeting was required.
On 6 April 2000 the SBU Investigative Department rejected SVI’s complaints of 5, 7, 8, 13, 15, 22, 23, 26, 27 and 30 March 2000 concerning the alleged unlawfulness of his detention and the investigation into his case, as being unsubstantiated.
On 13 April 2000 the Ukrainian Legal Foundation (a non-governmental organisation - an NGO) complained to the GPS about the applicants’ alleged ill-treatment in police custody. In particular, it complained that the applicants had been severely beaten and tortured by the investigating officers in order extract confessions. On 24 May 2000 the GPS rejected the Foundation’s allegations as unsubstantiated.
On 20 April 2000 SVI was placed in a solitary confinement within the SBU investigative punishment unit for 7 days for an alleged attempt to communicate with another detainee. His complaints about these disciplinary sanctions were reviewed on 16 May and 20 June 2000 by the Verkhovna Rada Ombudsman and by the State Penitentiary Department, respectively, and they were rejected by both as being unsubstantiated.
On 20 April 2000 the SBU Investigative Department rejected SVI’s complaints of 30 March, 2 and 12 April as being unsubstantiated.
On 27 April 2000 Ms Chirchenko was allowed to meet SVI.
In May 2000 the applicants’ advocate lodged complaints with the GPS with regard to the alleged unlawfulness of the disciplinary sanctions imposed on SVI. On 17 May 2000 the GPS rejected these complaints as unsubstantiated. Furthermore, it stated that the disciplinary sanctions imposed on SVI had complied with the procedure prescribed by law.
On 4 May 2000 the SBU Investigative Department informed the mother, ZOI, that criminal proceedings against her on charges of involvement in arms trafficking would be terminated.
On 5 May 2000 the SBU refused to allow Ms Chirchenko to meet SVI.
On 11 May 2000 the investigator of the SBU Investigative Department rejected SVI’s various complaints concerning the alleged unlawfulness of the investigation in his case and the refusal to take additional investigative steps which he had requested.
On 16 May 2000 the Secretariat of the Parliamentary Ombudsman rejected SVI’s complaints about the unlawfulness of the investigation in his case as being unsubstantiated.
On 17 May 2000 the applicants were allowed to familiarise themselves with the case file of the investigation. However, SVI was granted this facility for only twenty to forty minutes per day.
On the same date the Kyiv Regional Prosecution Service informed Mr Romanov that it had found no illegalities in the investigation of the case. It also mentioned that the applicant had made no complaints to them about the conditions of his detention and his placement in a punishment cell.
On 6 and 26 May 2000 the GPS rejected SVI’s complaints of 6 and
11 May 2000 about the allegedly unlawful actions of the investigator dealing with his case.
On 6 June 2000 the SBU investigator dismissed Mr Romanov’s request to provide him with a letter of attorney authorising him to represent SVI before international human rights bodies.
On 20 June 2000 the State Department for the Enforcement of Sentences rejected SVI’s complaints about the poor conditions of his detention.
On 21 June 2000 the GPS rejected SVI’s complaints of 6 June 2000 about the allegedly numerous violations of the Code of Criminal Procedure by the SBU investigators handling his case.
On 25 June 2000 SVI complained to the Prosecutor General about the poor conditions of his detention and the lack of medical treatment for scabies from which he was suffering.
On 2 July 2000 SVI complained to the Prosecutor General about the refusal to allow him to correspond with his family and to meet with Ms Chirchenko. He also complained about the refusal to provide him with additional information about the technical characteristics of the grenades used during the attack. These complaints were rejected as unsubstantiated.
On 10 July 2000 the President of the Pechersky District Court of Kyiv informed SVI that his complaints about the unlawfulness of the provisions of the Law on Pre-Trial Detention had not been examined as the court had no jurisdiction to deal with them.
On 11 July 2000 SVI complained about being beaten by inmates of the Detention Centre where he was held. He also alleged that the Detention Centre doctor had not provided him with the prompt medical treatment which was necessary, and that no adequate medical treatment had been available to him at the Kyiv Detention Centre of the Ministry of the Interior. In particular, he maintained that he had contracted a skin infection, scabies (короста), for which he had not received the necessary treatment.
On 20 and 23 July 2000 SVI complained to the Prosecutor General about the falsification of materials in the criminal case file (матеріалів кримінальної справи). He also asked the Prosecutor General to initiate a criminal investigation into these allegations.
In July 2000 Ms Chirchenko lodged complaints with the GPS about the attack on SVI by other detainees. On 27 July 2000 the GPS rejected these complaints as unsubstantiated.
On 17 August 2000 SVI signed a statement confirming that he had familiarised himself with the case file produced by the prosecution.
On 18 August 2000 the investigation was completed and the case sent to the GPS with an indictment.
On 24 August 2000 AMS, VVI and their advocates signed a statement issued by the prosecution, acknowledging that they had familiarised themselves with the criminal case file.
On 29 August 2000 the GPS approved the indictment issued by the SBU and remitted the case to the President of the Supreme Court, requesting him to rule on the jurisdiction of the case in accordance with Article 38 of the Code of Criminal Procedure.
On 31 August 2000 the Supreme Court received the applicants’ case file.
On 1 and 7 September 2000 the General Prosecution Service refused to release the applicants from detention or to apply different preventive measures.
On 14 September 2000 the GPS informed the applicants that, in accordance with the decision of the Supreme Court, the Dnipropetrovs’k Regional Court had jurisdiction to try the case.
3. The court proceedings
On 6 November 2000 the Dnipropetrovs’k Regional Court commenced judicial proceedings in the applicants’ case.
On 14 June 2001 that court, in the course of a public hearing, sentenced the applicants to 15 years’ imprisonment following their conviction for attempting to assassinate a Government official (Article 58 of the Criminal Code, 1960, hereafter the “CC”), interfering with the Presidential elections (Article 127 of the CC), inflicting minor bodily injuries, moderate bodily injuries and grave bodily injuries (Articles 101, 102, 106 and 107 of the CC), inflicting physical suffering on private persons, committed by an organised group of persons, and the unlawful trafficking and storage of arms and ammunition (Article 70 of the CC).
The court reached its conclusions after considering the following evidence:
- the statements of 41 persons who had witnessed the grenade attack, including some 35 victims;
- the testimonies of the suspects Mr Oleksandr V. Afanasyev and Mr Ivan I. Nedviga;
- evidence gathered in the course of the investigation into the case (an on-site examination of the place of attack, the reconstruction of the crime and the examination of the grenade debris and clothes of the victims of the attack);
- medical forensic examinations of the victims of the grenade attack, as well as various expert opinions on grenade traces, explosives, cytology and ballistics (amounting to some 50 forensic expert reports); and
- other corroborating evidence.
The court found that it was not necessary to examine the witnesses proposed by SVI (Mr Leonid Kuchma, President of Ukraine; Mr Yuri Kravchenko, the Minister of the Interior; Mr Leonid Derkach, the Chairman of the State Security Service; Mr Vadym Dolganov, the President of the National Television and Radio Company; and Mr Mykhaylo Potebenko, the Prosecutor General). The court also found no evidence whatsoever of any ill-treatment of the applicants while they were in police custody, for the purpose of coercing confessions. In this respect, it questioned ten officers of the law enforcement bodies who had not witnessed any ill-treatment of the applicants. Furthermore, it found that the applicants had been visited by the Parliamentary Ombudsman of Ukraine twice and had not complained to her about the conditions of their detention.
On 11 December 2001 the Supreme Court of Ukraine upheld these findings. It also reclassified the criminal acts committed by the applicants in accordance with the new Criminal Code that had entered into force on
1 September 2001. The Supreme Court found no evidence to corroborate the applicants’ allegations of ill-treatment in the course of the investigation and their detention.
On 22 July 2002 and 5 June 2003 the Supreme Court of Ukraine rejected SVI’s application requesting that the judgment of the Dnipropetrovs’k Regional Court of 14 June 2001 be exclusively reviewed (в порядку виключного провадження).
4. The main media statements regarding the applicants’ guilt
On 2 October 1999 (the date on which the explosions occurred), the State owned channel, UT-1, broadcast information from the Ministry of the Interior that the assault in Zaporizzhia had been committed by the applicants, who were working at the headquarters of the presidential candidate Mr Oleksandr O. Moroz. Between 3 and 5 October 1999 the UT-1 gave out information about the applicants, their families and their connections with the assault.
On 4 October 1999 the incumbent President and presidential candidate Mr Leonid D. Kuchma, while speaking in public before voters in Mykolayiv, stated that the persons arrested by the police had committed the assault. On the same date, the Minister of the Interior informed the public that the police had investigated only one version of the events, since the perpetrators of the grenade attack were already known to the Ministry.
On 10 October 1999 the Head of the Investigative Department of the SBU, Mr S. Lyaschenko, informed journalists that SVI was guilty of organising the grenade attack, because the pieces of the grenade found at the place of the assault were identical to the grenades found in SVI’s dwelling.
On 5 October 1999 the Prosecutor General, Mr M. Potebenko, in his public speech before members of the Verkhovna Rada, said that the investigation had disclosed sufficient evidence to corroborate the applicants’ guilt.
5. Proceedings against the daily newspaper “Fakty ta Kommentari” (“FK”)
On 10 and 12 October 1999 and 29 February 2000 the “FK” (“Факти та Коментарі”) published an allegation that SVI had committed criminal offences. It also disseminated information about his private and family life. The article stated that the applicant supported polygamy. It adduced information about his relations with his wife, children and mother.
In May 2001 SVI’s wife (Mrs Natalia G. Ivanchenko) and mother (ZOI) instituted proceedings in the Radiansky District Court of Kyiv, seeking a declaration that the information published in the newspaper on 10 and
12 October 1999 and 29 February 2000 had been untrue. On 12 June 2001 the Radiansky District Court of Kyiv partly allowed these claims and ordered the “FK” to publish a rectification. It also ordered the newspaper to pay the two women UAH 3,000 UAH and 560 UAH in damages, respectively.
6. Other events concerning the applicant S.V.I.
Between 1993 and 1996 the applicant participated in a number of political activities representing the Socialist Party of Ukraine.
On 26 July 1999 the applicant’s house was searched by the police on the basis of a prosecutor’s warrant. On the same date the police concluded an administrative protocol finding SVI guilty of obstructing the search and of publicly insulting police officers.
On 4 August 1999 the Dzerzhinsky District Court of Kryvyi Rig acquitted the applicant of committing an administrative offence. It also remitted the case for additional investigation by the Prosecution Service as to the applicant’s possible criminal liability for obstructing the police officers (Article 188 of the CC), and for publicly insulting them (Article 189 of the CC).
In August 1999 the applicant, as the head of the NGO “Правда проти Сили” (“Truth versus Power”), lodged complaints with the Dniprovsky District Court of Kryvyi Rig, seeking to declare unlawful the police injunction imposed on his NGO concerning the collection of signatures in support of presidential candidate Moroz. On 10 August 1999 the Dniprovsky District Court of Kryvyi Rig refused to consider SVI’s complaints, as falling outside its jurisdiction.
In September 1999 the applicant lodged complaints with the Supreme Court of Ukraine seeking to declare unlawful the refusal of the Central Electoral Committee to act upon his allegations of an unfair election campaign in favour of the incumbent President Leonid D. Kuchma.
On 1 October 1999 the Supreme Court of Ukraine refused to consider these complaints as the applicant had failed to comply with the formalities prescribed by law. On 21 October 1999 the Supreme Court again refused to consider the matter since he had failed to rectify the mistakes in his submissions.
Meanwhile, in 1999 the applicant had instituted divorce proceedings against his former wife.
The applicant on a number of occasions filed requests with the SBU investigators that Mr Romanov be appointed as his advocate to represent him before the domestic and international judicial institutions. However, the SBU rejected these motions.
COMPLAINTS
1. Complaints concerning all the applicants
a. The applicants complain under Article 3 of the Convention (separately and in conjunction with Article 13) that they were subjected to inhuman treatment and torture. They also allege that the conditions of their detention and the ill-treatment while in detention were contrary to the guarantees of Article 3 of the Convention. The applicants further maintain that the domestic authorities failed to investigate effectively their complaints about it, in violation of the procedural requirements of Article 3 of the Convention and the obligations under Article 13 of the Convention.
In particular:
(i) AMS complains that, because of the grenade explosion, he was wounded and did not receive the necessary medical treatment. He was interrogated immediately after his apprehension by the police officers. He complains that he was severely beaten. He alleges that electroshocks were administered to his genitals. He also complains that a gas mask was placed on his head with the breathing tube closed. Afterwards, one of the investigators opened the breathing tube and blew cigarette smoke into the mask. He alleges that during the interrogations his heart stopped twice. He maintains that his confessions were obtained under duress.
(ii) VVI complains that he was severely beaten by the police. A plastic bag and a ski hat were placed over his head so that he could not breathe. The applicant complains that he was tortured from 2 to 11 October 1999, to make him confess. He maintains that he was severely beaten at night and interrogated during the day. He alleges that he pleaded guilty in the course of the interrogation because of this torture.
(iii) SVI complains that while he was held in the SBU Investigative Centre he was subjected to noise disturbance. He also complains that he was subjected to disciplinary punishments imposed by the Detention Centre’s Administration on three separate occasions (including his solitary confinement between 20 and 27 April 2000), which were inhuman and degrading. He further maintains, referring to Articles 3 and 8 of the Convention, that he was deprived of contacts with his relatives and restrictions were placed on the number of food parcels he could receive.
b. The applicants allege under Article 5 § 1(c) of the Convention that their initial arrest on 2 October 1999 was unlawful.
c. The applicants submit, referring to Article 6 § 1 of the Convention, that the domestic courts erred in their assessment of the facts and in the application of the law, and that they failed to hear particular witnesses on their behalf. They allege that their conviction was unfair. They also complain about the infringement of the principle of the presumption of innocence, enshrined in Article 6 § 2 of the Convention, undermined by the statements made by the President of Ukraine, the Minister of the Interior and the Prosecutor General, as well as other officials.
AMS and VVI, who are Russian nationals, complain about a lack of adequate legal aid and assistance from the Consul of the Russian Federation in Ukraine.
The applicants allege that the representatives assigned to them by the GPS acted in a merely formal manner, and not independently. They persuaded the applicants to plead guilty and failed to represent the applicants’ interests. They also allege that they did not have adequate time or facilities to prepare their defence as they were restricted in their access to the case file (Article 6 § 3(b) and (c) of the Convention).
d. The applicants complain under Article 7 of the Convention that their conviction lacked any legal basis, as the victims of the grenade attack were not performing the duties of the Government officials, which is one of the elements of the corpus juris of the criminal offence envisaged by Article 58 of the Criminal Code 1960.
e. The applicants maintain that Article 9 of the Convention was violated since they were constantly persecuted by the Ukrainian law enforcement bodies for their involvement in the presidential campaign of the candidate Mr Moroz.
f. The applicants allege that they were not allowed to hold a meeting of the citizens’ union “Truth versus Power” or to picket the premises of the Municipal Council in August 1999. They allege an infringement of Articles 10 and 11 of the Convention.
g. The applicants complain about an infringement of Article 17 of the Convention, since the authorities of Ukraine allegedly abused their powers.
2. Complaints of SVI
The applicant complains about the unlawfulness of his detention from
24 August 2000 until 14 June 2001, as there was no warrant issued by “a competent officer authorised by law to exercise judicial power”. He invokes, in substance, Article 5 § 1(c) of the Convention.
He then complains, without giving any relevant details, about an infringement of his right to private life, contrary to Article 8 of the Convention, since the information that he had perpetrated the grenade attack was untruthful. He also complains under this provision that he was deprived of contacts with his relatives and restrictions were placed on the number of the food parcels he could receive from them.
The applicant further complains about an infringement of his right to marry since he wanted to marry his partner once divorced from his wife. However, the investigators allegedly impeded the exercise of his right, contrary to Article 12 of the Convention.
SVI complains about the lack of effective remedies for his complaints concerning the allegedly unlawful actions of the investigators in his case and their numerous refusals to allow his various procedural complaints, including those related to his solitary confinement, his marriage and the certification of the power of attorney. He invokes Article 13 of the Convention.
He complains that discrimination was caused by his representation of presidential candidate Moroz, leader of the Socialist Party in the opposition. He refers to Article 14 of the Convention.
The applicant also complains under Article 6 § 1 of the Convention about the unfairness of:
- the decision of the Dzerzhinsky District Court of Kryvyi Rig of 4 August 1999 finding him guilty of insulting the police officers;
- the decision of the Dniprovsky District Court of Kryvyi Rig of 10 August 1999 prohibiting his NGO from collecting signatures in support of Mr Moroz;
- the decision of the Supreme Court of Ukraine of 21 October 1999 refusing to consider his claims against the Central Electoral Committee; and
- the decision of the Radiansky District Court of Kyiv of 12 June 2001, concerning the claims of his mother and wife, awarding them compensation for untruthful information published in the “F.K.” newspaper.
THE LAW
1. The applicants complain about their severe beating and torture in detention, aimed at coercing their confessions. They allege that the conditions of their detention were inhuman and degrading and AMS alleges that he did not receive proper medical treatment for his grenade-inflicted injury, and that no medical treatment was given to SVI for his skin infection. They also complain that they were denied effective remedies in respect of these complaints. In particular, SVI complains that he was subjected to solitary confinement while awaiting trial, without the possibility of any court appeal against it, and that restrictions were placed on visits and food parcels sent to him. He also complains that he was subjected to noise disturbance. All of the applicants complain about the lack of adequate investigation into their allegations of ill-treatment.
The applicants invoke Articles 3 and 13 of the Convention, which provide as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
SVI complains that his detention in the Kyiv Detention Centre No. 13 between 24 August 2000 and 14 June 2001 was unlawful, as the prosecutor’s detention warrant expired and no further warrant was issued. In substance he invokes Article 5 § 1(c) of the Convention, which in so far as relevant provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”
The applicants further allege that their trial was unfair, particularly as they had inadequate time and facilities to prepare their defence, the legal assistance provided to them being illusory. They allege that their advocates were under the constant pressure and influence of the prosecution and, therefore, they could not represent them properly. They complain of an infringement of Article 6 § 3(b) and (c) of the Convention, which in so far as relevant provide as follows:
“3. Everyone charged with a criminal offence has the following minimum rights: ...
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...”
SVI complains under Article 8 of the Convention that restrictions were placed on his relatives’ visits, and restrictions were imposed on the number of food parcels he could receive from his relatives. Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints at the present stage, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government.
2. AMS and VVI complain that their initial detention on 2 October 1999 was unlawful within the meaning of Article 5 of the Convention. In particular, they refer to Article 5 § 1(c) cited above.
The Court notes that these applicants were arrested on 2 October 1999, but lodged their applications with the Court more than six months later on 27 May 2002.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for having been introduced out of time.
3. The applicants complain of a breach of the principle of the presumption of innocence, since State officials publicly expressed an opinion that the applicants were guilty before it had been established by the domestic courts. They rely on Article 6 § 2 of the Convention, which provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
However, the Court observes that the applicants did not raise this complaint either at their trial or on appeal before the Supreme Court of Ukraine, neither did they seek to challenge such statements in the course of the separate civil proceedings (see Koval v. Ukraine (dec.), no. 65550/01, § 3, 10 December 2002).
It follows that these complaints must also be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. SVI complains about the unfairness of the decision of the Dniprovsky District Court of Kryvyj Rig of 10 August 1999 prohibiting his NGO, “Truth versus Power”, from collecting signatures in support of presidential candidate Moroz. The Court notes that the applicant did not appeal against this decision to the Zaporizzhia Regional Court. It finds, therefore, that the applicant has not, as required by Article 35 § 1 of the Convention, exhausted all the remedies available to him under Ukrainian law.
It follows that this complaint must similarly be rejected under Article 35 §§ 1 and 4 of the Convention.
5. As to the complaints of AMS and VVI about a lack of adequate legal aid and assistance from the consul of the Russian Federation in Ukraine, the Court observes that the present application has not been lodged against the Russian Federation and that such alleged failings, even if they could fall within the scope of the Convention, are not imputable to Ukraine and its authorities. This aspect of the case is, accordingly, to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.
6. As to SVI’s complaints about the unfairness of the decision of the Radiansky District Court of Kyiv of 12 June 2001, the Court notes that only the applicant’s mother and wife were party to that procedure. He cannot therefore claim to be a victim of an alleged infringement of Article 6 § 1 of the Convention by the Radiansky District Court of Kyiv. This aspect of the case is therefore also to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.
7. Finally, the applicants complain about a violation of Articles 7, 9, 11 and 17 of the Convention. Moreover, SVI complains of an infringement of Articles 1, 2, 10, 12 and 14 of the Convention, as well as of the refusal of the Supreme Court of Ukraine on 21 October 1999 to consider his claims against the Central Electoral Committee.
However, the Court, having examined these complaints, and regardless of other possible grounds of inadmissibility, finds nothing in the case file which might disclose any appearance of a violation of these Convention provisions.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Adjourns the applicants’ complaints concerning
- their allegations of torture and severe beatings, their conditions of detention, a lack of proper medical treatment and assistance for Mr Andrey M. Samoylov and Mr Sergey V. Ivanchenko (Article 3);
- the restrictions imposed on Mr Sergey V. Ivanchenko regarding food parcels and visits (Article 3 and 8 of the Convention);
- a lack of effective investigation and remedies (Articles 3 and 13 of the Convention);
- the disciplinary sanctions applied to Mr Sergey V. Ivanchenko, and a lack of remedies against these sanctions (Articles 3 and 13 of the Convention);
- Mr Sergey V. Ivanchenko’s allegedly unlawful detention between
24 August 2000 and 14 June 2001 (Article 5 § 1(c) of the Convention); and
- the complaints concerning a lack of adequate time and facilities to enable the applicants to prepare their defence and a lack of adequate and effective legal assistance provided to them (Article 6 §§ 1 and 3 (b) and (c) of the Convention);
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
Registrar President
Full & Egal Universal Law Academy