I correctly predicted that there was a violation of human rights in KULIK v. UKRAINE.

Information

• Judgment date: 2017-02-02
• Communication date: 2012-02-24
• Application number(s): 34515/04
• Country:   UKR
• Relevant ECHR article(s): 3, 5, 5-1, 6, 6-1, 8, 8-1, 12, 13, 14
• Conclusion:
  Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
  Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
  Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
  Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial
  Article 6-3-c - Defence through legal assistance)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.913353
• Prediction: Violation

• Consistent

Communication text used for prediction

THE FACTS The applicant, Mr Sergey Anatolyevich Kulik, is a Ukrainian national who was born in 1968 and is currently serving a prison sentence at Sokalska Prison no.
47 in the Lviv Region (“prison no.
47”).
He is represented before the Court by Ms A.V.
Chibis, a lawyer practising in Chasov Yar.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Criminal proceedings, detention and alleged ill-treatment of the applicant On 24 January 2003 a record of a crime-scene examination was made noting that the bodies of a certain Kh.
and V. had been found.
According to the applicant, on 25 January 2005 his brother, Ch., was apprehended and held in Kyiv City Police Unit no.
20, where he was beaten up, threatened and left without food.
On 30 January 2003 the Desnyansky District Prosecutor’s Office of Kyiv opened a criminal case against the applicant, declared him wanted on suspicion of having murdered Kh.
and V., and ordered his arrest.
According to the applicant, in the evening of the same day the police arrested him in Kharkiv.
During the following night, in order to extract his confession to the murder, they beat him up, humiliated him, put a plastic bag on his head and cut off his air supply, and threatened to kill him when he was taken to Kyiv.
The applicant says that he could not bear the suffering and confessed to the murder.
He was detained at the Leninsky District Police Station of Kharkiv, on the basis of information provided by the Desnyansky District Police of Kyiv (“the district police”), from 9.50 p.m. on 31 January 2003 to 10.20 a.m. on 1 February 2003, when he was handed over to detective K. The applicant says that he was taken to Kyiv on 31 January 2003 and at 4 p.m. was placed in a detention cell at the district police station.
On the same date the Desnyansky District Court of Kyiv (“the District Court”) ordered his detention in order, inter alia, to bring him before a judge.
On 1 February 2003 investigator B. of the District Prosecutor’s Office drew up a record indicating that the applicant had been arrested at 6 p.m. on 1 February 2003 and that he had had it explained to him that he had the right to a lawyer from the moment of his arrest.
The part of the record containing information on whether his relatives had been informed of the arrest was left blank.
In a written confession of the same date, taken in the presence of police detective K., the applicant explained in detail how he had committed the murder.
The applicant says that this confession was written during the night of 30-31 January 2003.
He says that he requested the assistance of and a meeting with an advocate before his first interview by the police.
On 1 February 2003 his wife appointed advocate K. to represent him and informed the investigator.
There is no proof that the applicant requested legal assistance before that day.
On 3 February 2003 the investigator authorised advocate K. to represent the applicant and interviewed the applicant in her presence.
The applicant made statements similar to those contained in his confession of 1 February 2003.
Before the interview, according to the applicant, unspecified police detectives had visited him in the cell and warned him that if he retracted his confession, his cellmates, some of whom were drug addicts suffering from Aids, would strangle or bite him.
On 4 February 2003 the District Court ordered the applicant’s detention in Kyiv Temporary Investigative Isolation Unit no.
13 (“the Kyiv SIZO”).
On the same day a medical expert found scratches on both sides of the applicant’s hands; the applicant has given no explanation as to the cause of these injuries.
On 5 February 2003, during a reconstruction of the crime in the presence of the advocate, the applicant made statements similar to those in his confession.
With some changes, the applicant repeated these statements on 27 June 2003, when interviewed in the presence of his advocate.
The reconstruction was recorded on video.
There is no indication of any statement as to the applicant’s guilt made by the officials present at the reconstruction.
According to the applicant, only in the evening of that day was he given food, for the first time since he had been detained.
On 6 February 2003 the television channel “Kyiv” received a video‐recording of the crime reconstruction from the prosecutors and broadcast it on a number of occasions during 2003.
On 26 March and 24 April 2003 the District Court extended the applicant’s detention specifying that the applicant was charged with an especially serious offence, could carry on criminal activities and evade justice, and there was a need to carry out certain investigative steps.
On 30 May 2003 the Kyiv Court of Appeal (“the Court of Appeal”) extended his detention to five months additionally reasoning that the applicant could obstruct justice and the case against him was complex and voluminous.
The Court also took into account unspecified personal characteristics of the applicant.
From 13 May to 19 June 2003 the applicant was held at the Kyiv Forensic Psychiatry Centre, during which time he gave explanations similar to those in his confession dated 1 February 2003.
On 22 August 2003 the Court of Appeal, in the presence of a prosecutor, ordered the applicant to remain in detention, without indicating, however, a time-limit or grounds for his detention.
It noted that the applicant’s advocate had given notice that she would be on holiday during the hearing.
On 3 October 2003 the Court of Appeal, composed of two judges and four jurors and sitting as a first-instance court, convicted the applicant of murder and other offences and sentenced him to life imprisonment with confiscation of all his property.
He pleaded not guilty during the trial, explaining that he had confessed to the murder as a result of being threatened by a criminal group and “psychological” pressure from investigator B. and police detective K. The court, having interviewed both the investigator and the detective, as well as in the light of other evidence, found the applicant’s allegations unsubstantiated.
On 25 March 2004 the Supreme Court quashed the judgment of 3 October 2003 for lack of a signature and because of uncertainty in respect of the status of the jurors.
It also ordered the applicant to remain in detention, referring generally to the absence of “any final decision in respect of the charges brought, as well as the severity of the charges, and information on [the applicant] and his previous behaviour”.
On that day the applicant was kept handcuffed with his hands behind his back from 8 a.m. to 5 p.m., including when held in a metal cage located in the courtroom and guarded by three armed officers.
He complained to the judges that he could not read the papers prepared by his representatives while handcuffed, but his complaint was dismissed.
According to the applicant his hands turned black owing to the obstructed blood circulation.
It is not indicated in the submissions whether the applicant sustained any injuries on that date.
During a hearing on 6 April 2004, the applicant unsuccessfully requested the Court of Appeal to stop holding hearings on a daily basis on the ground that he could not prepare his defence and consult with his representatives given the lack of time and facilities.
The applicant appealed, but there is no indication of how his appeal was dealt with.
On 13 April 2004 the court agreed to allow the applicant’s wife to represent him.
On 21 April 2004 the Court of Appeal, in the applicant’s presence, rejected his request for release and ordered him to remain in detention in view of the severity of the charges brought against him, and of “information about him and other circumstances falling under Article 148 of [the Code of Criminal Procedure]”.
The court’s order, which was not subject to appeal, contained no time-limit for the applicant’s detention or explanation regarding what information about the applicant it had considered.
The court’s record of the hearing indicated that prosecutor S. had attended the hearing.
The applicant denies the latter information.
On 15 and 22 April and 6 May 2004 the applicant’s wife was supposed to meet the applicant, but the Kyiv SIZO did not arrange for the meetings to take place.
On 29 June 2004 the Court of Appeal refused to allow the applicant’s wife to study the case file.
On 14 July 2004 it forwarded the applicant’s complaints about how his confession had been extracted to the prosecutors for consideration.
The applicant did not receive any reply in this regard.
At a hearing held on 16 September 2004 the presiding judge of the Court of Appeal, referring to the absence of any medical certificate issued by the Kyiv SIZO indicating that the applicant was not fit to attend the hearing, refused to call an ambulance for him when he suffered a blackout and chest pain.
The judge interpreted the applicant’s requests for medical assistance as an obstruction of justice.
On 20 October 2004 the SIZO physician decided that the applicant was fit to take part in the hearings.
According to the applicant, on 18 February 2005 the Court of Appeal rejected his request for release with no reasons being given, and he was not allowed to make any statement in reply.
In a judgment of 18 March 2005, after holding a number of hearings on a daily basis, the Court of Appeal convicted the applicant on two counts of murder and theft (paragraphs 1 and 2 (9) and (13) of Article 115 and paragraph 5 of Article 185 of the Criminal Code) and sentenced him to life imprisonment with confiscation of all his property.
The court also ordered the applicant to remain detained in the Kyiv SIZO.
The applicant’s conviction was based on an analysis of his statements made in the confession and during the preliminary investigation, plus other evidence, including the statements of victims and eight witnesses, the statements of three witnesses read out in their absence, thirteen expert examinations, records of the investigative actions, and material evidence.
The court also considered the applicant’s allegations of duress by the police and prosecutors before and during the preliminary investigation, and, having interviewed seven witnesses in this connection and examined the video recording of the crime reconstruction and the medical report of 4 February 2003, found the applicant’s allegations unfounded.
It also noted that the allegations had not been raised before the relevant law-enforcement agencies.
The court further stated that the applicant had been detained in Kharkiv on the night of 30-31 January 2003.
According to the applicant, before the hearing the attitude of the judges of the Court of Appeal towards him had been accusatory; they had exerted pressure on his advocates, misinterpreted the evidence, extorted money from his family for his release, and falsified evidence, and on a number of occasions he had been transported to hearings despite being ill. Not all the witnesses, including experts, had been summoned at his request.
Moreover, before the hearings he had been given less than six hours for sleep and no time to prepare his defence.
All his complaints were rejected by the Court of Appeal.
During the hearings held before the Court of Appeal the applicant could not speak confidentially with his representatives because the guards did not allow them to come closer than a metre to each other.
On an unspecified date Judge D. of the Court of Appeal failed to provide the applicant with copies of paper and video records of certain procedural actions.
On 7 June 2005 the Court of Appeal refused to allow his wife to meet the applicant in the SIZO.
The applicant appealed against the judgment of 18 March 2005.
In particular, he raised such issues as being subjected to duress by the police in January and February 2003, being beaten up at the Kyiv SIZO on 3 April 2005 with no ensuing medical examination, poor conditions of detention in the Kyiv SIZO, lack of food during his detention from 9 p.m. on 30 January to 6 p.m. on 3 February 2003, the Court of Appeal’s refusal to arrange medical assistance for him on 16 September 2004, and that his detention from 30 January to 4 February and from 30 June to 22 August 2003 had been unlawful.
He further complained of a lack of both the opportunity to receive confidential advice from his representative and time to prepare his defence during the trial.
He also complained about the delayed first meeting with his advocate, and the Court of Appeal’s refusals to allow his representative to study the case file on 29 June 2004, and to allow the applicant himself to study all the case materials before the final hearing.
Finally, the applicant complained of the alleged overall unlawfulness of the requirement to obtain prior permission from a judge in order to meet with his representative in the SIZO, and of the refusals to grant such permission of 14 February and 10 March 2005.
On 26 July 2005 the Supreme Court of Ukraine, in the applicant’s presence, upheld his conviction and sentence as given by the Court of Appeal.
While deciding on the applicant’s guilt, the court relied on the case‐file evidence, including the applicant’s confession and his subsequent interviews during the preliminary investigation.
The court outlined the content of the applicant’s and his wife’s appeals, and replied to a number of his arguments.
It confirmed the first-instance court’s finding as to the unsoundness of his allegations of duress before and during the preliminary investigation, referring, inter alia, to the information provided by the Kyiv SIZO that the applicant had not requested medical assistance during the preliminary investigation.
It gave a reasoned conclusion in respect of his allegations of falsification of evidence, which it found to be unsubstantiated.
It addressed a range of the applicant’s arguments as to the assessment of certain evidence.
It found unsubstantiated the applicant’s assertions that that his relatives had not been notified of his detention and he had not been provided with a lawyer, since his wife had notified the investigator of the appointment of advocate K. on 1 February 2003.
The hearing lasted about half an hour.
According to the applicant, not all of his over two hundred arguments were considered and his wife was not allowed to make a statement before the court.
He was kept handcuffed in a metal cage during the hearing.
Only the operative part of the Supreme Court’s ruling was read out; he received a copy of the full text of the final ruling shortly afterwards.
Before the hearing, the Court of Appeal had not allowed the applicant to study volume 10 of the case file, the audio-recordings of some of the hearings, all the material evidence, or the video-recording of the reconstruction of the crime.
According to the applicant, the materials gathered during the preliminary investigation, including the video recording of the crime reconstruction, were released to the media during the trial.
As a result, his minor children did not go to school for half a year.
No court proceedings were instituted in this respect.
He states that his numerous complaints to State bodies about violations of his procedural and material rights were left unexamined or were rejected.
Since his detention, his family had neither a breadwinner nor any financial support from the authorities.
On 29 May 2006 the Kyiv Prosecutor’s Office rejected the applicant’s complaint about prosecutor S.’s failure to reply to his letter of 14 February 2006 wherein he had enquired whether the prosecutor had been present at the hearing of 21 April 2004.
On 11 August 2006 the applicant requested the reopening of the criminal proceedings.
On 22 December 2006 the Supreme Court refused the request.
According to the applicant, he has no right to an amnesty because of his sentence of life imprisonment, and he was unlawfully given the harshest sentence.
2.
The conditions of the applicant’s detention and transportation (period from 30 January 2003 to 14 December 2005) From 30 January to 14 February 2003 the applicant was not able to shave, wash or sleep properly.
He was being held in cells measuring 7 sq.
m without sleeping places and where more than ten detainees were kept at a time.
On 14 February 2003 he was placed in cell no.
32 of the Kyiv SIZO.
He was held there together with fifty detainees for more than ten days.
The cell measured 50 sq.
m and had a sink and a toilet that were hard to access owing to the number of cellmates.
He was then transferred to cell no.
95, measuring 7 sq.
m, which he shared with three other cellmates for one and a half months.
That cell’s windows were blocked, letting in no daylight and very little fresh air.
There were cockroaches and other insects in the cell that disturbed his sleep.
The toilet was not separated from the living area of the cell, which made using the toilet and eating and sleeping degrading.
Later, he was transferred to cell no.
85, measuring 16 sq.
m. There he was held with eleven other inmates in the same conditions as in the previous cell.
A typical day on which a hearing was held in the applicant’s case was as follows.
Between 4 and 5 a.m. he was woken up.
At about 6 a.m. he was given some food.
Between 6.45 and 7.30 a.m. the applicant, together with another thirty to forty detainees, was held in a room measuring 30 sq.
m with no seats, with ventilation but with a foul-smelling toilet.
Between 7.30 and 9.30 a.m. he was held with up to twenty detainees in rooms measuring 12-16 sq.
m, without windows and with poor ventilation, equipped with two benches and one table.
At 9.30 a.m. he was strip-searched in the presence of others.
Between 9.40 and 10.10 a.m. he was held with twenty to thirty detainees in foul-smelling toilets measuring 12 sq.
m and having no separate compartments, ventilation or windows.
Then he was put with up to twenty detainees inside a metal compartment measuring 12 sq.
m inside a vehicle that had no windows or ventilation, and was taken to the court.
In the winter it was very cold inside the vehicle, while in the summer it was very hot.
The hearings were held between about 11 a.m. and 2 p.m. After every hearing the applicant was held with up to five others in a room measuring from 0.8 to 2 sq.
m, with no food, and was only once allowed to go to the toilet, while remaining handcuffed.
At about 5 p.m. he was taken to the vehicle and transported back to the SIZO, which took up to three hours.
Then he was held with up to ten people in a room measuring 3 sq.
m without windows or ventilation for about one hour.
Afterwards, in reverse order to the procedure in the morning, he was strip-searched and kept in a toilet and a room measuring 12 sq.
m. At about 11 p.m. he was taken back to his cell.
On those days he received little food and had no opportunity to wash himself.
Following his conviction on 3 October 2003, the applicant was transferred to cell no.
154 where, according to him, his health substantially deteriorated.
Before the transfer his belongings and shaving things were taken away.
He was dressed in an orange robe with marked “life imprisonment”.
The cell measured no more than 7 sq.
m, had two bunks and was already occupied by two detainees.
The toilet and sink were not separated from the living part.
Until 13 October 2003 he had to sleep on the floor.
From 7 to 25 March 2004 the applicant occupied, with three other inmates, cell no.
141, which measured 7 sq.
m. and which was designed for two persons.
According to the applicant, from 3 October 2003 to 31 October 2004 he received no medical assistance in the SIZO and his watch was taken away.
On 18 March 2005 his personal belongings and shaving things were taken away, his hair was closely cropped and he was transferred to cell no.
154.
After that, he was poorly fed and forbidden to receive food and medication from his relatives.
On 27 March 2005 he complained to the SIZO governor about this regime and the fact that his watch had been taken from him.
On 26 July 2005 the applicant was taken to the Supreme Court in a vehicle compartment measuring 0.5 sq.
m inside which it was very hot.
According to him, during his stay in the Kyiv SIZO the food provided was inedible: he was fed watery porridge with margarine, decaying fish and stinking sauerkraut, and the bread gave him stomach ache.
Meat, eggs, and dairy products were neither provided in the SIZO meals nor allowed to be supplied by his relatives.
Fresh vegetables and fruit were provided rarely and if so, they were sliced and covered in fat.
He complained about the conditions of his detention to the SIZO governor on 3 March 2005.
There is no indication of how that complaint was dealt with.
After his arrest his right to contact his minor children was limited: he could only telephone them once a month while within earshot of the SIZO officers.
Moreover, the SIZO administration hindered him in sending his numerous complaints to various State bodies.
3.
Alleged ill-treatment of the applicant on 3 April 2005 On 3 April 2005 the Kyiv SIZO officers, for no reason, beat up and insulted the applicant and his cellmates G.A.
and G.V in the SIZO’s yard and threatened to do the same daily if he did not stop complaining.
Following the beating, he was placed in a disciplinary cell for five days.
He decided to forgo daily walks.
During the incident, his belongings and food in the cell were searched and some of them damaged.
He sustained a bruise measuring 5 x 7 cm on his right leg during the beating and reported the incident to the Kyiv SIZO’s duty governor, but no medical examination was carried out.
On 4 April 2005 his wife complained about the incident to the General Prosecutor’s Office.
On 6 April 2005 the applicant filed a complaint with the SIZO governor about the lack of a medical examination.
On 11 April 2005 his wife paid him a visit and saw the bruise.
On 17 May 2005 the Kyiv Prosecutor’s Office formally notified the applicant that he had been placed in a disciplinary cell on 3 April 2005 as a result of his attempt to contact cellmates in other cells.
The Office also stated that during the search nothing unlawful had been found in his belongings, that no physical force had been applied during those events, and that no complaints had been received by the SIZO.
4.
Alleged ill-treatment of the applicant on 20 May 2005 According to the applicant, from 8.30 a.m. to 5 p.m. on 20 May 2005 escort guard K. continuously held him in handcuffs with his hands behind his back, apparently in accordance with Ministry of the Interior guidelines.
The applicant challenged the guard’s actions and the ministerial guidelines before the Pechersky District Court of Kyiv (“the Pechersky Court”), which left his complaints unexamined on formal grounds.
In particular, on 8 July 2005 his criminal complaint lodged against escort guard K. was left unexamined, and on 23 June 2005 a further complaint lodged against escort guard K., the Paramilitary Department of the Ministry of the Interior and the Ministry itself was left unexamined.
The former decision was not subject to appeal and the applicant did not appeal against the latter.
5.
Alleged ill-treatment of the applicant on 26 July 2005 In the morning of 26 July 2005 escort guards entered the applicant’s cell, handcuffed him and forcibly moved him to another building, where he was made to stand naked in their presence for twenty minutes while they searched his clothes and checked documents.
6.
Remainder of the proceedings In June 2005 the applicant lodged a complaint with the Pechersky Court seeking acknowledgment of and damages for procedural violations allegedly committed by the Kyiv prosecutors.
On 1 June 2005 the court left his complaint unexamined for lack of material jurisdiction.
On 4 November 2005 the Kyiv Court of Appeal dismissed the applicant’s appeal.
On 22 December 2005 the Higher Administrative Court invited the applicant to pay a court fee, to submit copies of the impugned decisions, and to specify the alleged violations.
On 4 January 2006 it left the appeal unexamined, the applicant having failed to remedy the above-mentioned shortcomings.
In May 2006 the applicant filed with the General Prosecutor’s Office a number of criminal complaints against the judges of the Supreme Court, which were rejected on 16 June 2006.
He did not appeal.
In June 2005 he lodged three criminal complaints with the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”) alleging that the governor and an officer of the SIZO had unlawfully deprived him of his right to study his personal record and had failed to ensure the provision of medical assistance, including after a beating by SIZO officers on 3 April 2005.
On 23 September 2005 the court left the complaints unexamined on formal grounds.
The applicant did not appeal.
In 2005 the Constitutional Court rejected the applicant’s requests for the interpretation of certain legal provisions.
7.
The physical conditions of the applicant’s imprisonment (period from 14 December 2005 to 27 October 2008) On 14 December 2005 the applicant was transferred from the Kyiv SIZO to prison no.
47.
On 13 April 2006 he was diagnosed with hypertension.
During the early part of his imprisonment, the applicant was held with other inmates suffering from a latent form of tuberculosis (“TB”) in cells no.
17, 15, 8, and 7.
His wife was not allowed to visit him in prison on some occasions, but the applicant did not raise that issue before the courts.
On 13 January 2008 the applicant was transferred to cell no.
7, which had not been disinfected after a prisoner with the active form of TB had left it.
The central heating in the cell did not function and the window was partly covered with plastic instead of glass.
Fifteen out of the sixty-four prisoners in the same sector of the prison had various forms of TB.
On 21 January 2008, after a periodic X-ray, and on 24 January 2008, after having consulted a phthisiatrician, the applicant was diagnosed with and assigned therapy (anti-TB medication, vitamins and diet) for category 3 infiltrative TB of the upper part of the right lung.
After an X-ray of his lungs and another consultation with the phthisiatrician on 20 March 2008, it was noted that the condition was in the resolving phase.
From 24 April to 13 May 2008, with short stays in two SIZOs, the applicant was transported to Kherson Prison no.
61 (“prison no.
61”), which specialised in TB treatment.
During his transportation the applicant received no medication for TB and from 4 to 13 May 2008 he was held with another prisoner who was suffering from the active form of TB in cell no.
3 of the Dnipropetrovsk SIZO.
Upon his arrival at prison no.
61 he was diagnosed with “nidal TB of the upper part of the left lung, and pulmonary fibrosis”.
The applicant received inadequate food, his cell was never disinfected, and rats in the cells damaged his belongings and food.
From 13 to 31 May and from 25 June to 25 July 2008 he was held with prisoners suffering from the active form of TB in cells no.
1 and no.
4 of section no.
4.
In those cells the windows were kept closed, substantially limiting the supply of fresh air.
On 12 October 2008 the applicant left prison 61 having recovered from the disease, with the diagnosis “TB with residual changes (a few nidals) to the left lung and pulmonary fibrosis on the left and right”.
According to the applicant, the course of anti-TB treatment was not completed owing to his recalcitrance.
On his return to prison no.
47 on 27 October 2008, the applicant was registered with the same diagnosis as he had had on leaving prison no.
61.
The applicant states that certain prison regulations currently affecting his rights and duties are not in conformity with the national law, but he has instituted no domestic proceedings in this regard.
8.
Alleged ill-treatment of the applicant on 17 November 2007 On 17 November 2007 the prison special force, in masks and armed with truncheons, entered the applicant’s cell in prison no.
47 and ordered him and other prisoners to lie face down on the floor with their hands behind their heads.
Once when he tried to take a more comfortable position, the applicant was hit with a baton in the back.
Then he was forced out into a cold corridor where he was ordered to strip naked and to squat in the presence of others and then to go to the prison yard, where he spent two hours half-dressed.
During his absence from the cell, his legal and religious literature, letters and photographs of his relatives and all the food received from them were seized.
Apparently, this was done in order to deter him and other prisoners from escaping from prison.
He complained about the incident to the General Prosecutor’s Office.
No further details were given in this regard.
9.
Alleged ill-treatment of the applicant on 13 May 2008 On 13 May 2008 officer B. of prison 61 wrung the applicant’s handcuffed hands and forced him to walk faster.
No further details were given in connection with this event.
B.
Relevant domestic law According to Article 151 § 7 of the Criminal Punishments Code, as in force from 6 April 2006, an offender sentenced to life imprisonment may submit a pardon application after serving at least twenty years of his sentence.
Paragraphs 1 and 2 (9) and (13) of Article 115 of the Criminal Code provide for seven to fifteen years’ imprisonment as the penalty for premeditated murder, and imprisonment of ten to fifteen years or for life as the penalty for premeditated murder carried out to conceal or facilitate the commission of an offence, or committed by a person who has committed a premeditated murder.
Paragraph 5 of Article 185 of the Code penalises serious theft especially by imprisonment for seven to twelve years, with confiscation of the offender’s property.
Under section 12(4) of the Pre-Trial Detention Act 1993, as worded at the material time, detainees have the right to be visited by defence counsel (their representative or advocate), whom they may see alone with no restrictions on the number of visits or their length, from the moment the counsel in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case.
COMPLAINTS 1.
The applicant complains under Article 2 of the Convention that his hypertension could be lethal under the conditions of his current imprisonment.
2.
The applicant raises various complaints under Article 3 of the Convention.
First, in January and February 2003 the police subjected him and his brother to physical and psychological violence.
The applicant alleges that the Kyiv SIZO officers limited his sleep, unlawfully made him wear a special robe and placed him in a cell for prisoners serving life sentences; they denied him medical care when he was ill and deprived him of the possibility to locate himself in time by taking away his watch.
The applicant also states that the living conditions of his detention in and his transportation from and to the Kyiv SIZO were inhuman.
Secondly, the applicant complains that on 25 March 2004 he was handcuffed for nine hours, including the period of the court hearing, when he was also held in a metal cage with his hands behind his back.
During the hearing of 26 July 2005, he was also held handcuffed in the metal cage.
He states that on a number of occasions he was transported to court hearings despite being ill, and during a hearing on 16 September 2004 the Court of Appeal refused to arrange medical assistance for him when he became ill. Thirdly, he complains of ill-treatment by prison officers on 17 November 2007 and 13 May 2008 and the seizure of his belongings on the former date.
He also complains about poor conditions of detention in prisons no.
47 and 61, his groundless transfer to the latter, and inadequate medical assistance in the prisons.
3.
Relying on Articles 3, 6, 13, 14 and 17 of the Convention, the applicant complains that he was unlawfully handcuffed by the escort guard from 8.30 a.m. to 5 p.m. on 20 May 2005 and that the Pechersky Court failed to remedy that situation.
4.
He also complains that he was ordered to serve his sentence before the judgment became final.
Under Articles 3, 6 § 1 and 8 of the Convention he complains that certain prison regulations determining his rights and duties are unlawful.
5.
The applicant complains under Article 5 of the Convention that the extensions of his detention of 22 August 2003 and 18 February 2005 were not reasoned, and that in the former case the extension was ordered without him being present.
He also complains that his requests for release were rejected on irrelevant grounds on 25 March and 21 April 2004.
6.
Relying on Article 6 § 1 of the Convention, the applicant complains that his trial was not fair.
He complains, in particular, that the attitude of the Court of Appeal judges towards him was accusatory; they exerted pressure on his advocates, misinterpreted the evidence, extorted money from his family and falsified the case-file materials.
He also complains that the Constitutional Court unlawfully rejected his request for the interpretation of certain legal provisions and that the Shevchenkivsky Court disposed of his criminal complaints against the Kyiv SIZO officials unfairly.
7.
Under Articles 6, 13, and 17 of the Convention, the applicant alleges that his representative was not allowed to study the case file on 29 June 2004 and that he was able to meet his representative in the Kyiv SIZO only after obtaining the permission of the judge who had refused to give permission on 14 February, 3 and 10 March and 7 June 2005.
Even when permission was given, the Kyiv SIZO did not always allow the representative to visit him, for example on 15 and 22 April and 6 May 2004.
Furthermore, before and during the daily hearings at the Court of Appeal he was not given the opportunity to speak confidentially with his representative and had no time to prepare his defence.
Additionally, during the court hearing held on 25 March 2004, he was handcuffed with his hands behind his back and held in a metal cage and was thus not able to read the material in his defence file.
8.
The applicant complains that, contrary to Article 6 § 3 (d) of the Convention, not all witnesses against him were summoned before the Court of Appeal at his request.
9.
Under Articles 6 and 13 of the Convention, he complains of falsification of the crime-scene record made on 24 January 2003.
10.
Relying on Articles 6 § 1, 13, and 14 of the Convention, the applicant contends that his complaint lodged in the summer of 2005 against the Kyiv prosecutors was left unexamined, while his criminal complaints against the judges of the Supreme Court were unlawfully dismissed.
11.
Under Articles 6 § 1 and 7 § 1 of the Convention and Article 2 of Protocol No.
7, he complains about the refusal to re-open the criminal proceedings, and that he was unlawfully given the harshest sentence.
12.
Under Article 6 § 2 of the Convention the applicant complains in general terms of the extended use of handcuffs after his conviction.
13.
Under Article 7 § 1 of the Convention he maintains that he had no intention of killing the victims and that his conviction for theft was groundless.
14.
The applicant raises a number of complaints under Article 8 of the Convention.
Firstly, while in the Kyiv SIZO, his right to contact his minor children was substantially limited.
Secondly, material from the preliminary investigation was released to the media, thus violating the principle of presumption of innocence, and this affected his children, who did not go to school for half a year.
Further, the State deprived his family of a breadwinner, yet provided them with no financial support.
Finally, he complains of restrictions on visits to him in prison no.
47.
15.
The applicant complains under Article 13 of the Convention that his numerous complaints addressed to State bodies have not all been examined or acted upon.
16.
Under Article 14 of the Convention, he complains of the way in which State officers treated him during the proceedings.
17.
Relying on Article 17 of the Convention, he complains about his treatment by State officers during the proceedings and that the Kyiv SIZO administration obstructed him in the sending of some of his complaints to various State agencies.
18.
He complains that, contrary to Article 34 of the Convention, judge D. did not provide him with copies of the paper and video records of certain procedural actions.
19.
Under Article 7 of the Convention and Article 2 of Protocol No.
7, he complains that he was entitled to no amnesty under national law on account of his life sentence.
20.
Lastly, the applicant relies on Articles 1, 14 and 17 of the Convention and Article 1 of Protocol No.
12, without making any specific complaints.
21.
Without relying on any particular provision of the Convention, the applicant complains that his arrest and detention before 4 February 2003 were unlawful, and that his detention from 30 June to 22 August 2003 was not authorised by a court.
He also complains that he was not provided with an advocate immediately after his arrest and, even when his wife appointed one, he was granted permission to receive a visit from the advocate only after two days.
The applicant further complains that the conditions of his detention were inadequate between 30 January and 14 February 2003, and that there was a lack of food from 30 January to 5 February 2003.
He alleges that on 3 April 2005 Kyiv SIZO officers beat up and insulted him and his personal belongings were damaged.
Further, on 26 July 2005 he was humiliated by the escort guards.
He alleges that on 18 February 2005 the Court of Appeal did not allow him to make a statement and that the Supreme Court’s hearing of 26 July 2005 was unfairly brief and his more than two hundred arguments were not all considered.
He states that his wife was not allowed to make a statement at that hearing and that only the operative part of the final ruling was read out.
He further states that the Court of Appeal did not allow him to study all the material in his case file before the hearing of the Supreme Court.
He also alleges that his correspondence with the Court was opened and inspected by the Kyiv SIZO.
Finally, the conditions of his detention in the Dnipropetrovsk SIZO were poor, his transfer to prison 61 was unlawful, and during his transportation there he received no medication for his tuberculosis.
22.
In a letter dated 3 February 2006, the applicant complains under Article 5 of the Convention that the extensions to his detention of 26 March and 24 April 2003 were unlawful.
In two letters dated 23 March and 23 June 2006, he complains under the same provision that his detention both in the Kyiv Forensic Psychiatry Centre and after 1 July 2003 was unlawful.
Lastly, in a letter dated 13 June 2006 the applicant, relying on Articles 6 and 34 of the Convention, complains that prosecutor S. was not present at the court hearing held on 21 April 2004 and afterwards the Kyiv Prosecutor’s Office failed to provide an explanation in that regard.