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FIFTH SECTION

Application no 69250/11
Aleksandr Vladimirovich SMIRNOV
against Ukraine
lodged on 24 December 2005

STATEMENT OF FACTS

The applicant, Mr Aleksandr Vladimirovich Smirnov, is a Russian national who was born in 1981 and has his permanent address in Voronezh, the Russian Federation. He is represented before the Court by Mrs L.R. Smirnova, his mother.

A.  The circumstances of the case

1.  Criminal proceedings against the applicant

On an unspecified date in 2002 the applicant arrived in Ukraine to gather material concerning political protests against President Kuchma’s Government for the Russian-based pro-communist newspaper Sovet Rabochikh Deputatov.

On 5 December 2002 the applicant was stopped by the police at a bus station in Odessa on the pretext of checking identity documents. Having seized his money and Russian passport, the police officers took him to the police station, where officers of the State Security Service of Ukraine questioned him about his purported involvement in terrorist activity, without notifying him of the exact nature of the accusations against him. The applicant was denied representation by a lawyer and his rights as a suspect were not explained to him.

Between 6 and 23 December 2002 the applicant was held alternately in the police holding facility as a vagrant and the Kakhovka and Kherson Temporary Detention Centres (ITTs) and questioned concerning his purported involvement with a criminal group of revolutionary communists in Ukraine. He was not formally named as a suspect. During this period the applicant refused to make any self-incriminating statements.

On 23 December 2002 the applicant was placed in the Mykolayiv ITT, where several other individuals suspected of membership of the revolutionary communist group were also detained at the material time and investigated.

On the same date the applicant confessed to involvement with the group in question, reiterating his request to be provided with a lawyer. The applicant’s request for a lawyer was recorded, however, it was not granted and he was further questioned in the absence of a lawyer.

Following his confession, the investigative authorities made a record of the applicant’s arrest as a suspect.

On 26 December 2002 V.V. was appointed as the applicant’s lawyer. On the same date the applicant was remanded in custody by a court order.

On 29 December 2002 the applicant refused to be represented by V.V., maintaining that she was attempting to convince him to cooperate with the investigation.

On the same date the applicant’s mother hired N.B. as the applicant’s representative.

In the end of February 2003 the applicant, along with other co-defendants in his case, was transferred to the Odessa Pre-trial Detention Centre (SIZO).

The investigation was continued in Odessa, which made it extremely difficult for the applicant to communicate with N.B., who had a 120 km commute from Mykolayiv. Moreover, N.B. was not notified of most of the investigative measures in advance, and the applicant therefore found himself without his help during many investigative procedures.

On 27 May 2003 the pre-trial investigation was finished and the applicant, along with ten other individuals implicated in the criminal activity of the revolutionary communist group, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance court.

The applicant was given until 18 July 2003 to study the case file, consisting of over forty volumes, without assistance from a lawyer or from a translator, in spite of the fact that many documents were in the Ukrainian language only. In addition, no catering arrangements were made on the days when the applicant was studying the case file.

Subsequently, during the trial, the applicant and his co-defendants were likewise not provided with any food on court days.

In September 2003 a Russian-based NGO, “Z.”, hired O.K. as the applicant’s new lawyer. According to the applicant, in the course of the trial O.K. visited him in detention three times only and never lodged any requests or complaints with the court on his behalf. On numerous occasions the applicant complained in court about O.K.’s performance, requesting her removal from the proceedings. His requests were rejected on the pretext that he should find another suitable lawyer first. On several occasions the applicant requested that his mother, L.R. Smirnova, who was not a lawyer, be admitted as his defence representative, but his requests were refused with reference to his mother’s status as a witness in the proceedings. In February 2004 the court rejected the applicant’s request for K.K., who was apparently not a licensed lawyer, to represent him In May 2004 it further rejected his request to admit B.B., another lawyer hired by his mother, purportedly referring to breaches of procedural rules.

In the meantime, on 1 November 2003 B., one of the applicant’s co-defendants, died. The applicant and his co-defendants complained that B. had been tortured to death and that they had also been ill-treated to extract confessions.

The court ordered the Prosecutor’s Office to investigate these allegations. Following the investigation, the Prosecutor’s Office reported that there was no case to answer and that B. had died of cancer.

On 19 July 2004 the Regional Court convicted the applicant for distribution of materials propagating violent revolt against the constitutional order, participation in a terrorist act (detonating an explosive in a rubbish bin near the headquarters of the State Security Office in Kyiv) and criminal association membership. The applicant was acquitted of handling unlawful arms and explosives. The Regional Court rejected the applicant’s ill-treatment allegations as unsubstantiated and sentenced him to eight years’ imprisonment.

On 7 September 2004 the applicant lodged a cassation appeal against his conviction. He acknowledged his affiliation with the communist movement and the fact that he had distributed several issues of a pro-communist newspaper. On the other hand, he maintained that he was innocent of any criminal act and that the trial court had incorrectly assessed the facts and incorrectly applied the law in his case. The applicant also alleged that the confessional statements he had made during the pre-trial investigation should have been excluded from the evidence, as having been obtained under torture and in breach of his right to legal representation. He further complained that the nature of the accusations against him had been insufficiently explained to him upon his arrest and that his arrest and detention up until 23 December 2002 had been unlawful. The applicant also complained about the performance of his lawyer O.K. and the refusal of the trial court to assign a qualified legal-aid lawyer to represent him and allow his mother to represent him in the proceedings.

Based on the case-file materials, it appears that the applicant subsequently amended his initial appeal on several occasions. However, there is no information as to the nature of these amendments and as to whether or not they were admitted for examination.

On an unspecified date before the cassation hearing the applicant’s mother hired O.Kh. to represent the applicant.

On 26 July 2005 the applicant, represented by O.Kh., participated in the hearing before the Supreme Court. At the hearing the applicant, his lawyer, and all of his co-defendants and their lawyers made their oral submissions in Russian. The applicant was also addressed in Russian by the Panel of Judges.

In their oral submissions during the hearing, the applicant and O.Kh. primarily challenged the assessment of the facts and application of the law in the applicant’s case, and complained that the applicant had made self-incriminating statements under torture and in breach of his right to legal representation and that his arrest had been unlawful.

On the same date the Supreme Court took a decision, discontinuing the criminal proceedings against the applicant with respect to the criminal association membership charges, and upholding the rest of the Regional Court’s judgment. The applicant’s ill-treatment allegations were rejected as unsubstantiated.

According to the applicant, a copy of the decision was handed to him only on 31 January 2006 and a Russian translation was provided with an even further delay, following his persistent requests.

2.  Ill-treatment allegations

Starting either from December 2002 or February 2003, on numerous occasions the applicant, and his mother on his behalf, complained to various branches of the prosecutor’ s office of Ukraine that he had been ill-treated during the pre-trial investigation with a view to obtaining self-incriminating statements from him. They further alleged that notwithstanding the applicant’s medical examinations on 14 December 2002, 13 February 2003 and 24 April 2003, the medical staff refused to record his injuries. These complaints allegedly generated either no answers at all, or formalistic ones.

On 18 July 2003 two officers of the Russian Federal Security Service questioned the applicant on the premises of the Odessa law-enforcement facility concerning his purported involvement in criminal activity in the Russian Federation.

Subsequently, the applicant and his mother complained to the Odessa and the General Prosecutor’s Offices of Ukraine that these officers had beaten the applicant and that he had sustained bruises and cerebral concussion as a result.

On 15 August 2003 the Odessa Regional Prosecutor’s Office refused to institute proceedings into the applicant’s allegations concerning ill-treatment by the Russian security officers, having found, upon interviewing various parties, including the SIZO medical staff, and examining other evidence, that there was no ill-treatment case to answer. According to the case-file materials, the applicant never appealed against this decision in formal court proceedings.

On 17 November 2003 the prosecutor’s office decided not to institute criminal proceedings into the applicant’s allegations of ill-treatment by the Ukrainian investigative authorities, having found, after exploring various sources of evidence and questioning all the witnesses, including the medical staff in the detention facilities he was held in, that there was no basis for suspecting any ill-treatment. Referring to these findings and other available materials, including medical records, the Regional Court and subsequently the Supreme Court eventually rejected the applicant’s ill-treatment complaints as unfounded.

On 24 May 2004 the applicant lodged a fresh complaint with the Kakhovka Regional Prosecutor’s Office about having been ill-treated by the investigative authorities at the beginning of the criminal proceedings against him.

On 22 June 2004 the aforementioned authority refused to institute criminal proceedings for want of evidence of any ill-treatment.

On numerous other occasions the applicant, usually through his mother, continued complaining about his alleged ill-treatment by the Ukrainian and Russian law-enforcement authorities to various branches of the prosecutor’s office of Ukraine. On several occasions the prosecutor’s office notified him in response to his complaints that no further investigation was procedurally possible, since previous refusals to institute criminal proceedings taken on 15 August and 17 November 2003 had not been revoked.

In 2007 the applicant’s mother attempted to institute administrative proceedings on the applicant’s behalf, challenging the inactivity of the prosecutor’s office of Ukraine in investigating her son’s ill-treatment complaints. Her submissions were dismissed without examination on the merits with reference to her repeated failure to comply with the applicable procedural formalities.

On several occasions the applicant’s mother also complained to the Russian authorities about the ill-treatment allegedly administered to her son by the Russian security officers; however, her complaints were dismissed for want of evidence of any ill-treatment.

3.  Post-conviction detention

In fall 2005 the applicant was transferred to the Slovyanoserbsk Correctional Colony to serve his sentence and assigned to a maximum security unit, implicating that most of the time he was confined to his cell. According to the applicant, the conditions of his detention were very hard. In particular, he was held in a thirty-square-metre cell with ten to twelve other inmates, most of whom smoked in the cell, unlike himself. Regard being had to the lack of ventilation, the air in the cell was always stale. The windows had tinted glass and reading or writing was harmful for the eyes. The nutrition and medical assistance, in particular, dental care, were of extremely poor quality. In winter the cell was freezing, while in summer it was unbearably hot. On a number of occasions the applicant’s mother complained to various authorities on his behalf about the conditions of his detention, requesting, in particular, his transfer to a non-smoking cell and permission to give him an electric fan to improve ventilation. However, in their replies, the authorities maintained that the conditions of the applicant’s detention were in compliance with the applicable law and that there was no legal basis for segregating smoking prisoners from non-smoking ones.

On numerous occasions between 2006 and 2007 the applicant’s mother asked for restrictions concerning the number of prison visits she was allowed to be lifted (according to the law, she was entitled to quarterly extended visits (up to three days) and monthly short visits (up to several hours)). She maintained that she needed to visit the applicant more frequently and communicate with him in private, as she was not only his mother, but also his representative in the Convention proceedings and domestic administrative proceedings pending at the material time. She also complained that during the short visits she was separated from the applicant by a glass partition and their conversations were monitored. In addition, she alleged that applicable rules made the exchange of documents during visits practically impossible.

On numerous occasions the applicant’s mother’s relevant complaints were rejected as not based on applicable law.

On 22 June 2006 the Prison Board refused the applicant’s request for transfer to a less strict penitentiary on the pretext that his behaviour did not appear to be improving.

The applicant and his mother made extensive attempts to appeal against that decision.

In summer 2007 the decision was revoked and the applicant’s transfer to a less strict penitentiary was ordered.

On 18 September 2007 the applicant was transferred to the Kholodnogorsk Correctional Colony in Kharkiv.

COMPLAINTS

In his initial correspondence of 24 December 2005 the applicant lodged the following complaints against Ukraine:

-  under Article 3 of the Convention about having been tortured by the Ukrainian investigative authorities to extract self-incriminating statements;

-  under Article 5 §§ 1, 2, 3 and 4 of the Convention that his arrest and detention before trial had been unlawful and unfair;

-  under Article 6 § 1 of the Convention that the criminal proceedings against him had been inordinately lengthy; that the judicial authorities had used his confessional statements obtained in breach of the privilege against self-incrimination as a basis for his conviction and that the courts had been neither independent, nor impartial, since they had incorrectly assessed the facts and applied the law in his case, favouring the view of the prosecution;

-  under Article 6 § 3 (a) of the Convention that he had not been informed of the nature of the accusations against him for several weeks following his detention in December 2002;

-  under Article 6 § 3 (b) of the Convention that he had insufficient time and facilities to prepare his defence, regard being had to the limited time he had to familiarise himself with the case-file materials, a tight hearing schedule and lack of catering arrangements on days when he was studying the case-file and on hearing days;

-  under Article 6 § 3 (c) of the Convention that numerous procedures at the pre-trial investigation stage, including initial questioning, had taken place without a lawyer; that V.V. and O.K. had not been representing his interests in good faith and that the State had failed to provide a quality legal-aid lawyer, while the trial court had refused to allow K.K. and B.B., the lawyers chosen by him, to represent him at the trial stage;

-  under Article 6 § 3 (d) of the Convention that ten witnesses he had requested be heard in court had not been summoned;

-  under Article 6 § 3 (e) that he had not been provided with assistance from an interpreter or a translator during the cassation hearing and when familiarising himself with the case-file materials, many of which were in the Ukrainian language, and that the Russian language translation of the Supreme Court’s decision in his case had not been made available to him for a very long time; and

-  under Article 13 of the Convention that he had had no effective remedies for his above-mentioned complaints.

On 21 March 2006 the applicant added to his application, by lodging the following complaints against Ukraine:

-  under Article 3 of the Convention with respect to the conditions of his detention in the Odessa police holding centre and the Kherson, Kakhovka and Mykolayiv ITTs; and

-  under Article 10 of the Convention that his conviction was connected to his journalistic activity and political beliefs.

Between 30 December 2005 and August 2006 the lawyer V.V. Chernikov, who was representing the applicant at the material time, lodged a number of additional complaints on his behalf under Articles 2, 3, 6 § 2, 8, 9, 10 and 14 of the Convention. However, on 29 August 2006 the applicant, who dismissed V. V. Chernikov by that time, notified the Court of his wish to withdraw all these complaints.

On 5 December 2006 the applicant, represented by L.R. Smirnova, his mother, added to his application by lodging the following complaints:

-  under Article 6 § 2 of the Convention that he had been treated like a criminal by various authorities long before his conviction had been pronounced;

-  under Article 6 § 3 (c) of the Convention that his mother had not been admitted to the proceedings as his defence representative; and

-  under Article 34 of the Convention that he had obtained a copy of the Supreme Court’s decision taken in his case with a delay.

On 31 December 2007 the applicant, represented by L.R. Smirnova, added the following complaints against Ukraine to his application:

-  under Article 2 of the Convention that the treatment by the authorities he had complained about under Article 3 of the Convention had also been indicative of an imminent threat to his life during the entire duration of the criminal proceedings and service of his sentence;

-  under Article 3 of the Convention about the conditions of transport to and from court during the trial, about the Ukrainian prosecutor’s office’s failure to investigate allegations of the applicant’s ill-treatment by the Russian security officers, the authorities’ failure to organise meals for the defendants while they were studying the case-file materials and during the trial and about the conditions of detention in the Slovyanoserbsk Colony;

-  under Article 6 § 1 of the Convention that the court hearing in his case could not be considered public, because the courtroom was very small and those who had wanted to attend the hearing, including his mother, had been subjected to various obstacles and restrictions;

-  under Article 8 of the Convention that his right to correspond with and receive visits from his mother had been severely restricted during the criminal proceedings against him, that certain correspondence and newspaper subscriptions had not been delivered to him in 2006 and that not all of his requests for transfer to a penitentiary with a less strict regime had been delivered to the authorities;

-  under Articles 8, 9, 10 and 14 of the Convention that his conviction had been based on his political beliefs and had not been necessary in a democratic society; and

-  under Articles 8 and 34 of the Convention that during his stay in the Slovyanoserbsk Colony his mother had been unable to have unrestricted private visits with him and under Articles 6 § 3 (c) and 34 of the Convention about allegedly poor performance of his lawyer, V.V. Chernikov.

QUESTIONS TO THE PARTIES

1.  Were the conditions of the applicant’s detention in the Slovyanoserbsk Colony, including the physical, sanitary and health-care arrangements, compatible with Article 3 of the Convention standards?

2.  Were the applicant’s defence rights and the principle of fair proceedings enshrined in Article 6 §§ 1 and 3 (c) of the Convention respected in the present case, given that the domestic courts convicted him, in particular, on the basis of confessions he had made in the absence of a legal representative? Were the applicant’s rights not to incriminate himself and to be legally represented respected?