CASE OF ALEKSANDR VLADIMIROVICH SMIRNOV v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);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;Criminal proceedings;Article 6-3-c - Defence through legal assistance)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
6. The applicant was born in 1981 and lives in the Russian Federation. 7. On 5 December 2002 the applicant was stopped by the police at a bus station in Odessa, Ukraine, and detained in a holding facility for vagrants (приймальник-спецрозподільник) on the grounds that he had no identity documents with him. 8. According to the applicant, he was detained and held alternately in the aforementioned facility and the Kakhovka, Kherson and Mykolayiv police detention facilities until 23 December 2002, and was questioned off the record about his alleged involvement with a terrorist group plotting to instigate a revolt to reinstate a communist state. During those question sessions the applicant was beaten and tortured. 9. According to the documents on file, on 9 December 2002 the applicant was examined by B., a medical specialist of the Odessa holding facility for vagrants, who noted that he had no bodily injuries. Subsequently (on 14 December 2002) the applicant was taken to Kakhovka and placed in the police temporary detention facility, where he stayed until 18 December 2002. On the date of his arrival the applicant was examined by S., a medical expert, who recorded no bodily injuries and noted that the applicant had made no complaints of ill-treatment. 10. On 14 and 15 December 2002 the Kakhovka police questioned the applicant as a witness in connection with unidentified proceedings. During those interviews the applicant explained to the police that he was a member of a Russian-based non-governmental organisation, “Z.”, which advocated rights for political prisoners and propagated communist political views. He and two other members of Z. had been commissioned to come to Ukraine to distribute their newspaper, Soviet rabochikh deputatov, and other materials, participate in public activities organised by opposition political forces in Ukraine, and promote networking with local leftist groups. 11. On 17 December 2002 the applicant participated in a confrontation with V.S., a Kakhovka resident, who confirmed having communicated with the applicant’s associates and having received the Soviet rabochikh deputatov newspaper. 12. On 23 December 2002 the applicant addressed a handwritten statement to investigator V.K. of the Security Service of Ukraine (“the SSU”) in Mykolayiv, in which he confessed, in particular, that he had been distributing the Soviet rabochikh deputatov newspaper and other printed materials in Ukraine and that he, with two other members of the communist movement, of which he was a member, had blown up a rubbish bin near the SSU headquarters in Kyiv in October 2002. 13. On the same date the applicant was arrested in Mykolayiv on suspicion of a terrorist offence and was subsequently remanded in custody following a court order. It appears from the arrest report drafted on 23 December 2002 that the applicant, who had been notified of his right to legal assistance upon his arrest, expressed the wish to consult a lawyer before his first questioning. 14. At about 12.30 p.m. on 24 December 2004 the applicant signed two documents confirming that he understood his rights as a suspect, and also that he wished to consult a lawyer. Subsequently (at about 12.45 p.m.), the applicant signed a statement of consent to be questioned by an SSU officer without a lawyer. During that questioning the applicant reiterated his earlier statements and provided further details concerning his acquaintance and encounters with various activists of the communist movement in Russia and Ukraine. 15. On 26 December 2002 V.V., a lawyer engaged by the applicant’s mother, was admitted to the proceedings as his defence counsel. 16. On 29 December 2002 the applicant was indicted for membership of a terrorist group and participation in a terrorist act. Questioned in V.V.’s presence, the applicant confessed to some of the charges against him. In particular, he confirmed his affiliation with the communist movement and participation in political opposition activities, but denied taking part in the rubbish bin explosion or any terrorist activity. Citing his right to remain silent, the applicant refused to explain why his statements differed from those he had given previously. 17. On 30 December 2002 the applicant requested that V.V. be replaced by N.B., a new lawyer engaged by his mother. This request was granted on the same date. 18. In February 2003 the applicant was transferred to the Odessa no. 21 pre-trial detention facility, as the investigation of the case had been transferred to the Odessa SSU. 19. On various occasions in the spring of 2003 the applicant, with his consent, was questioned in Odessa in the absence of N.B., whose practice was in Mykolayiv. When questioned the applicant sometimes refused to answer questions, citing his right to remain silent, and at other times responded to the questions asked, either confirming or modifying his previous submissions. 20. On 27 May 2003 the investigation was completed, and the applicant, along with ten other individuals implicated in affiliation with a criminal association which had engaged in a number of robberies and other crimes committed on behalf of their organisation with a view to reinstating a communist state, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance court. 21. On 24 July 2003 the applicant and his lawyer N.B. signed an affidavit that they had finished studying the case file. On the same date N.B. requested that the case be remitted for a further investigation, alleging that numerous substantive and procedural-law provisions had been breached. He submitted, in particular, that the applicant had been unlawfully detained and tortured between 5 and 23 December 2002, with the aim of extracting self-incriminating statements from him, in breach of his right to mount a defence. 22. On the same date the investigator in charge of the case refused this request. He noted in particular that, as indicated in the materials in the file, the applicant had been arrested only on 23 December 2002, and no investigative activities had been carried out involving him before that date. Nor had he complained of any ill-treatment. 23. The applicant’s trial began in September 2003. 24. During the trial, the applicant pleaded not guilty to all the charges. He admitted that he was acquainted with his co-defendants as members of the pro-communist network and fellow distributors of the Soviet rabochikh deputatov newspaper and various communist propaganda material in Ukraine. At the same time he denied being involved in the rubbish-bin explosion imputed to him, and also denied all knowledge of any involvement by his co-defendants in any type of criminal activity. The applicant also submitted that he had been unlawfully detained between 5 and 23 December 2002, and had made false self-incriminating statements as a result of ill-treatment by the investigating authorities. The medical staff of the detention facilities in which he had been held had refused to record his bodily injuries. He had not lodged any relevant complaints at the beginning of the investigation, as he had feared reprisals. 25. After the death of B., one of the applicant’s co-defendants, during the trial proceedings, the applicant and his co-defendants demanded an investigation of the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment during the investigation. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and that there had been no ill-treatment case to answer with respect to either the applicant or his co-defendants. 26. On 24 May 2004 the applicant lodged a fresh complaint with the Kakhovka Regional Prosecutor’s Office, alleging that he had been ill-treated by Kakhovka police officers in December 2002. 27. On 22 June 2004 the prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s allegations. It was noted in the text of the relevant decision, in particular, that the officers questioned had acknowledged that the applicant had been detained in their charge from 14-18 December 2002 as an arrestee under investigation. However, those officers had stated that they had neither ill-treated him, nor received any complaints from him concerning ill-treatment by third parties. It was also noted in the decision that the officers’ explanations had been consistent with the explanations by the medical expert who had examined the applicant on 14 December 2002. 28. On an unspecified date, N.B.’s engagement having been terminated, O.K. was appointed as the applicant’s new lawyer. On several occasions the applicant complained in court about O.K.’s performance, offering to replace her with his mother as his lay defence representative and with some other individuals. These requests were refused by the court on the basis of various procedural provisions, the applicant having been instructed to engage a competent licensed lawyer to replace O.K. as a condition for her being dismissed. 29. On 19 July 2004 the Regional Court found the applicant guilty of affiliation with a criminal association plotting reinstatement of a communist state in Ukraine by violent means, distribution of the Soviet rabochikh deputatov newspaper, whose articles were found to propagate the ideas of such a violent revolt, and participation in a terrorist act (the aforementioned rubbish bin explosion). In the text of its judgment, the court referred to an extensive array of evidence, including the applicant’s statements given on 23 and 24 December 2002. The court noted that those statements were consistent with other evidence, and that there was no indication that they had been extracted by ill-treatment or otherwise in defiance of the applicant’s will or in breach of his procedural rights. They therefore had to be preferred over the applicant’s submissions at the trial. Finally, the court sentenced the applicant to eight years’ imprisonment, with effect from 5 December 2002. 30. On 7 September 2004 the applicant lodged a cassation appeal against his conviction, in which he reiterated the submissions he had made during the trial and complained, in particular, that his right to mount a defence had been breached and that the statements he had made at the investigation stage in the absence of a lawyer should be excluded from the evidential basis. 31. On 26 July 2005 the applicant, represented by O.Kh., a new lawyer engaged by his mother, reiterated his position at an oral hearing before the Supreme Court. 32. On the same date the Supreme Court rejected the applicant’s allegations of breaches of his procedural rights, and upheld his conviction for distribution of material promoting violent revolt and participation in a terrorist act. It also confirmed the applicant’s sentence, having, however, dropped the charges of membership of the criminal association. 33. On several further occasions between 2003 and 2007 the applicant and his mother complained to the Ukraine prosecutor’s office and to other authorities that the applicant had been ill-treated by SSU officers and police, as well as by Russian security service officers who had purportedly questioned him in Ukraine concerning criminal acts committed in Russia. The applicant’s and his mother’s attempts to institute formal criminal investigations in connection with these allegations were to no avail. 34. In November 2005 the applicant was transferred to the Slavyanoserbsk no. 60 Correctional Colony (“the Slavyanoserbsk Colony”), where he served his sentence until he was transferred to another detention facility in September 2007. 35. On arrival the applicant was assigned to cell no. 201 in the maximum security unit. 36. According to the applicant, the conditions of his detention therein were incompatible with human dignity. In particular, the cell, which measured some thirty square metres, accommodated from ten to sixteen inmates, confined to it all day except for an hour’s daily exercise in the outside courtyard. Notwithstanding the general prohibition, many inmates smoked in the cell, which was not equipped with artificial ventilation. As a result, the applicant suffered severely from the effects of passive smoking, while the administration refused his requests for transfer to another cell or for installation of an electric fan his mother had offered to provide. Opening a window to let in some fresh air was problematic, particularly in winter, as with the poor heating the temperature in the cell went down to about eight degrees Celsius. In addition, the windows, which had non-transparent panes of glass, barely let in daylight. With only two small electric bulbs, artificial light was also very poor. As a result, it was very difficult to read or write in the cell. The food was also inadequate. To support the applicant’s nutritional needs his mother had to send in regular food parcels, containing such basic products as tea, pasta, cereals and canned meat and vegetables. In support of his allegations, the applicant presented copies of lists of food items sent in by his mother. He also presented copies of his and his mother’s appeals to the prosecutor’s office and other authorities, in which they requested that the applicant be moved to a non-smoking cell or at least that the use of an electric fan be permitted. They also requested that other matters, in particular, the catering, lighting and heating arrangements be inspected and improved. 37. According to the Government, the conditions of the applicant’s detention were fair. In particular, the applicant’s cell, which measured thirty-two square metres, was equipped to accommodate eight inmates only, which ensured sufficient personal space per detainee. It had windows allowing access to daylight and fresh air. It was also equipped with electric light of sufficient brightness, and had artificial ventilation in the sanitary facility. The heating functioned adequately and the temperature in the cell was always between nineteen and twenty-two degrees Celsius. Smoking was allowed only in the courtyards, and meals provided to detainees were sufficient and properly balanced to meet their nutritional needs. Following the applicant’s and his mother’s complaints, the prosecutor’s office had inspected the conditions of the applicant’s detention and found them to be in accordance with applicable domestic regulations. 38. According to the applicant, he was deprived of any medical care during his detention in the Slavyanoserbsk Colony. In particular, in January 2006 he requested a full medical examination, as he was suffering from constant fatigue, periodic pain in the kidney area, oedema, headaches and chest pain. This request received no response. In March 2007 he was also refused treatment for chronic dental decay, as the medical unit lacked funding to obtain the necessary supplies. It was only in May 2007, after his mother had procured the necessary supplies at her own expense, that the applicant received the treatment. In addition, on many occasions the applicant’s mother sent in parcels containing other basic medicines and supplies, such as antiseptics, activated carbon, adhesive plasters and vitamins, purchased at her own expense. 39. According to the Government, the medical assistance available to the applicant in the Slavyanoserbsk Colony was adequate. The applicant underwent a medical check-up upon his arrival and subsequently benefitted from semi-annual (spring and autumn) checkups. Specifically, he received check-ups on 12 November 2005 and 15 March, 14 April and 30 September 2006. During these check-ups the applicant was also X-rayed for tuberculosis screening. In March 2007 the applicant also had blood and urine samples taken for laboratory testing. The results of all these screenings indicated that the applicant’s health was in general satisfactory. 40. The Government also provided records, according to which in March 2007 the applicant had been examined by a dental specialist, who recommended non-urgent treatment for his chronic dental decay, and notified that the appropriate supplies were not available at the Colony’s medical unit at that time. In May 2007, the necessary supplies having been procured by the applicant’s mother, he received the treatment.