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FIFTH SECTION

Application no 63763/11
Bogdan Leonidovich ZINCHENKO
against Ukraine
lodged on 30 December 2005

STATEMENT OF FACTS

The applicant, Mr Bogdan Leonidovich Zinchenko, is a Ukrainian national who was born in 1983 and has his permanent address in Odessa.

The circumstances of the case

On 19 December 2002 the applicant was arrested in Odessa on suspicion of having being involved with a group of “revolutionary communists” implicated in various violent and other crimes.

According to the applicant, on 19 and 20 December 2002 the law-enforcement officers ill-treated him in order to obtain incriminating statements. In particular, they made him lie on a cold floor for several hours with his arms and legs tied together behind him.

On 20 December 2002 the applicant was transported to Mykolayiv, where several other members of the same group had been arrested and questioned.

On 22 December 2002 an unspecified court ordered the applicant’s detention on remand.

On 29 December 2009 the applicant was appointed a legal-aid lawyer from Mykolayiv; however, he was not afforded an opportunity to consult him in private.

On 23 February 2003 the applicant was transported back to Odessa and detained in Odessa pre-trial detention centre (SIZO) no. 21.

According to the applicant, the conditions of his transport were unbearable. In particular, no warm clothes were provided to him and the guards laughed when they saw him shivering. As a result, the applicant caught pneumonia.

Upon arrival in Odessa, the applicant initially received no medical assistance for his pneumonia. On an unspecified date he was transferred to the SIZO no. 21 medical unit for treatment. However, as there were no spare beds, the applicant had to stay on the floor.

During his stay in the SIZO, the applicant was frequently moved from cell to cell. Many of the cells were overcrowded. In particular, a ten-bed cell could host twenty or more detainees at a time. The applicant notified the SIZO administration that he was suffering from mitral insufficiency (a heart condition). However, no medical treatment, supervision, or special arrangements were provided as a result.

In March 2003 the applicant’s father was appointed as his defence representative at his request. Subsequently, the applicant’s father was removed from the proceedings for undisclosed reasons. While he was represented by his father, the applicant had no legal representation, as he was not aware that he could have a second representative.

Throughout the course of the investigation, the applicant acknowledged that he knew his co-defendants and sympathised with their political views. However, he denied any knowledge of or personal involvement in unlawful acts, if any, committed by them.

On 27 May 2003 the pre-trial investigation was completed and the applicant, along with ten other individuals implicated in criminal activity as members of the revolutionary communist group, was committed to stand trial before the Odessa Regional Court of Appeal acting as a first-instance court. He was accused of criminal association membership, two armed robberies and a terrorist act (arson of a private automobile).

Throughout the trial, the applicant denied any involvement in any criminal acts. He further alleged that he and his co-defendants had been ill-treated by the investigative authorities in order to extract confessions, and that B., one of his co-defendants who had died in detention in the course of the investigation, had been tortured to death.

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

On 3 February 2004 the applicant complained in court that the conditions of his detention and transport to court had prevented him from participating in the trial effectively. In particular, on account of overcrowding he had been chronically deprived of sleep and was not able to concentrate. He requested the court to inspect the conditions of detention in the SIZO.

In March 2004 the court ordered the applicant’s and his co-defendants’ medical examination, pursuant to which they were declared fit to participate in the trial.

On 19 July 2004 the Odessa Regional Court of Appeal, acting as a first-instance court, found the applicant guilty of affiliation with a revolutionary communist criminal association, as a member of which he took part in two armed robberies. It further found the applicant guilty of setting a private automobile on fire, having re-qualified the relevant charge from “a terrorist act” to “hooliganism”. The court also found the applicant’s allegation that he and his co-defendants had been ill-treated unsubstantiated.

The applicant appealed in cassation before the Supreme Court of Ukraine. He challenged the trial court’s assessment of the facts and application of the law and alleged that all the evidence collected during the pre-trial investigation should have been declared inadmissible as it had been obtained in breach of procedural guarantees. In particular, the applicant had not been legally represented for the most part of the investigation and the authorities had exerted unlawful pressure on him and tortured his co-defendants into making confessional statements. He also alleged that his arrest and detention had been in breach of the law and that he had had very limited facilities to familiarise himself with the case file. In particular, after the trial, he had had only sixteen days to study the forty-four volume case file in preparation for his appeal, while his requests for additional time to study the file had been refused.

During the cassation proceedings the applicant was represented by a lawyer, K.

On 26 July 2005 the Supreme Court held a hearing in the applicant’s case and acquitted him of having set an automobile on fire for lack of evidence. The court upheld the other convictions, having noted, in particular, that several eyewitnesses, including victims and some of the applicant’s co-defendants, testified that the applicant had participated in the robberies imputed to him when questioned in open court. The Supreme Court rejected the ill-treatment allegations as unsubstantiated and upheld the applicant’s sentence.

The applicant alleged, without providing further details, that during the criminal proceedings against him his right to correspondence with the outside world and family visits had been initially banned and then restricted.

In January 2006 the applicant was transported to the Gubnyk Penitentiary in the Vinnytsya Region to serve his sentence. According to him, the conditions of transport had been unbearable. In particular, the train cars were poorly ventilated and overcrowded and there was no possibility to visit the toilets as needed.

On 26 July 2006 the Committee for Protection of Political Prisoners, a public organisation, complained to the Ombudsman on the applicant’s behalf that the applicant had been arbitrarily deprived of extended visits from his family and restricted to dispatching one letter per month.

On an unspecified date this complaint was transferred to the Vinnytsya Regional Prosecutor’s Office for investigation.

On 26 September 2006 the Prosecutor’s Office informed the Committee that there were no restrictions on the applicant’s correspondence rights. In particular, he had received twenty-four letters in 2006 and had dispatched two. As regards extended visits, according to provisions of the applicable law in force since 2004, the applicant was entitled to quarterly “extended” (up to three-day) visits from his family. These visits had not been possible in 2006, as the penitentiary had lacked the funds to finish equipping the necessary facilities. However, the work was underway, and was expected to be completed by the end of the year. In the meantime, the applicant had been keeping in contact with his family via telephone and by way of “short” (several-hour) visits.

In December 2006 the applicant received his first “extended” visit from his family.

In February 2009 the applicant’s lawyer, based in Moscow, Russia, requested the Odessa Regional Court of Appeal to send him a number of documents from the applicant’s case file by post.

On 25 June 2009 the court denied this request, having noted, in particular, that it had no facilities to prepare and send the copies and that the lawyer could study the case file on the court’s premises.

COMPLAINTS

On 30 December 2005 the applicant lodged the following complaints:

-  under Article 3 of the Convention that he had been ill-treated by the investigative authorities in order to extract confessional statements. He also complained that the conditions of his transport to the Odessa SIZO no. 21 and of his detention in that SIZO had been degrading and that throughout his pre-trial detention adequate medical assistance had not been made available to him;

-  under Article 5 of the Convention that his arrest and pre-trial detention had been unlawful;

-  under Article 6 §§ 1 and 3 of the Convention that his criminal trial had been excessively lengthy and unfair, that the courts had been neither independent nor impartial, and that his right to legal representation had been breached; and

-  under Article 6 § 2 of the Convention that the authorities had considered him guilty long before his conviction had been pronounced.

On 24 January 2006 the applicant additionally lodged the following complaints:

-  under Article 2 of the Convention that his co-defendant B. had been tortured to death by the investigative authorities and that no effective investigation had ensued, and that the applicant had constantly feared for his own life during the criminal proceedings on account of the cumulative effect of the conditions of his detention and the conduct of the investigative authorities;

-  under Article 6 of the Convention that he had not been able to effectively participate in the trial and had had insufficient time and facilities to prepare his defence, regard being had to the cumulative effect of the conditions of his detention (including sanitary arrangements and medical assistance) and transport to the court premises, and difficulty appointing a lawyer;

-  under Article 8 of the Convention that he had been unfairly restricted in his right to correspond with the outside world and receive family visits while under investigation;

-  under Articles 5, 9, 10 and 14 of the Convention that his arrest and conviction, which had been based on the fact that he had communist beliefs, was neither lawful nor necessary in a democratic society; and

-  under Article 13 that he had no effective remedies for his complaints under Articles 3, 5 and 6 of the Convention.

On 29 May 2006 the applicant further added to his application, expanding on his original complaints and lodging additional complaints under Article 6 of the Convention that the courts had incorrectly assessed the evidence and incorrectly applied the law in the criminal proceedings against him; that his right to question witnesses had been breached and that there had been no translation from the Ukrainian language available to him during the hearing in the Supreme Court.

On 9 March 2007 the applicant also added to his application, complaining that the conditions of his transport to the Gubnyk penitentiary in January 2006 had been in breach of Article 3 of the Convention; that he had been arbitrarily held in a life-prisoner’s cell for one month in winter 2006; and that restriction of his correspondence and the prolonged inability of the penitentiary administration to arrange facilities for an “extended” visit from his family had been unlawful and had breached his rights under Article 8 of the Convention.

On 8 September 2009 the applicant made the final addition to his application, complaining that the Odessa Regional Court of Appeal had interfered with his right of individual petition by refusing to send his lawyer copies of various documents from his case file.

QUESTIONS TO THE PARTIES

1.  Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention during his stay in the Odessa SIZO? In particular, were the conditions of his detention, including physical, sanitary and health-care arrangements, compatible with the Convention standards?

2.  Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by Article 6 § 3 (b) and (c) of this provision? In particular:

(a)  Were the applicant’s rights to effectively participate in the trial, defend himself in person and have adequate time and facilities for the preparation of his defence within the meaning of Article 6 § 3 (b) observed, regard being had to his complaints about the adverse effect of the conditions of his detention and transport to court hearings on his ability to concentrate and his submissions concerning limited time to study the case file before and after the trial?

(b)  Was the applicant’s right to legal representation within the meaning of Article 6 § 3 (c) of the Convention observed, regard being had to the fact that he had no lawyer during the initial stage of the investigation and that subsequently he was legally represented only during some stages of the proceedings?

3.  Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, on account of the impossibility of receiving extended family visits in the Gubnyk penitentiary in 2006?

4.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention about the conditions of his detention in the Odessa SIZO, as required by Article 13 of the Convention?