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FIFTH SECTION

Application no. 15853/08
Valentyn Oleksiyovych VOLOSHYN
against Ukraine
lodged on 10 March 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Valentyn Oleksiyovych Voloshyn, is a Ukrainian national who was born in 1952 and lives in Poltava.

A.  The circumstances of the case

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

Between 9 and 18 June 2004 the applicant was held in the temporary detention centre of the Poltava Region Police Department (“the ITT”). He was subsequently moved to another detention facility. He was released by the end of 2004.

On 10 December 2006 the applicant lodged a civil claim with a court against the ITT and other authorities seeking compensation for non-pecuniary damage sustained owing to the inappropriate conditions of his detention in the ITT.

The applicant claimed that throughout the period of his detention in the ITT he had not been given a chance to wash himself or clean his teeth; he had to sleep on a wooden bunk without a mattress or bed linen; every night insects bit him putting him at risk of being infected with HIV from one of the other inmates; instead of a spoon he was given a little appliance which made it impossible to eat; he was never allowed outside exercise and had no access to fresh air; the toilet in the cell offered no privacy; every morning and evening he and the other detainees were strip searched in each other’s presence.

The applicant submitted that his allegations could be corroborated by other detainees and asked the court to have the ITT submit relevant detention records to identify his cellmates and summon them as witnesses. He further demanded that the court inspect the cells in which the applicant had been held to establish the facts in dispute.

During the hearings before the first-instance court the applicant argued that the conditions of his detention had been contrary to the Convention. He further identified the whereabouts of two detainees held together with him. When questioned in the court, the detainees confirmed the applicant’s description of the conditions of detention.

On 7 June 2007 the first-instance court dismissed the claim as unsubstantiated. It noted that there had been no evidence to suggest that the applicant had sustained any non-pecuniary damage, that there had been any unlawful actions or inactivity on the part of the defendants or that they had been guilty of any civil wrong.

The applicant appealed claiming that the court had disregarded the statements of the two detainees without any reason; likewise, it had not taken the necessary measures to identify and examine the other detainees or inspect the premises of the ITT. The applicant emphasised that the practice of strip searches was contrary to the Convention by referring to the Court’s case-law.

On 31 July 2007 a court of appeal upheld the judgment of the first-instance court. It noted that, according to the official records submitted by the defendants, at the relevant time the cells in the ITT had been disinfected twice a month; the applicant had been visited by his lawyer and relatives who had given him the necessary hygiene products; the strip searches had been carried out in accordance with the regulations adopted by the Ministry of Internal Affairs; and the photos of the cells and exercise yard, submitted by the defendants, suggested that the physical conditions of detention had been appropriate. On the other hand, the applicant had not supported his allegations by proper evidence.

The applicant appealed on points of law repeating the arguments he had raised before the court of appeal.

On 28 January 2008 the Supreme Court upheld the decisions of the lower courts finding that they were lawful and substantiated.

B.  Relevant domestic law

1.  Constitution of 28 June 1996

Article 9 of the Constitution provides that international treaties that are in force, agreed to be binding by the Supreme Council of Ukraine, constitute a part of the national legislation of Ukraine.

2.  Code of Civil Procedure of 18 March 2004

Article 137 of the Code provides that if a party to proceedings experiences difficulties in collecting evidence, the court shall obtain such evidence at the request of that party.

Article 140 of the Code provides that material and written evidence which cannot be delivered to the court shall be inspected at its location.

COMPLAINTS

1.  The applicant complains that the physical conditions of his detention in the ITT were contrary to Article 3 of the Convention.

2.  The applicant complains under Article 6 of the Convention that the courts arbitrarily refrained from collecting and examining evidence relevant to the dispute; they did not give sufficient reasons for their findings and failed to analyse the applicant’s important arguments.

QUESTIONS TO THE PARTIES

1.  Has there been a breach of Article 3 of the Convention on account of the conditions of the applicant’s detention in the temporary detention centre of the Poltava Region Police Department?

2.  With respect to the applicant’s detention in the above-mentioned facility, has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3.  Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts comply with the principle of equality of arms and the requirement that court decisions must be reasoned?

The Government are invited to provide copies of minutes of the court hearings in the applicant’s case and the domestic regulations which were the basis for the applicant’s strip searches.