CASE OF IGLIN v. UKRAINE
Remainder inadmissible;No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
6. The applicant was born in 1981 and is currently serving a life sentence in Izyaslav. 7. On 21 February 2002 the applicant was convicted of robbery and other crimes, sentenced to 13 years’ imprisonment and taken to the Kryvyy Rig correctional colony to serve his sentence. 8. While the applicant was serving his sentence, new criminal proceedings were instituted in which charges of criminal association membership, murder and other violent crimes were advanced against him. On an unspecified date N. N. was appointed as the applicant’s legal-aid lawyer. Subsequently A. K., another legal-aid lawyer, replaced him. 9. On an unspecified date the applicant, along with several other individuals, was committed for trial to the Dnipropetrovsk Regional Court of Appeal (hereafter “the Regional Court”), acting as a first-instance court. The charges against him included belonging to a criminal association, as a member of which he had taken part in three murders with a view to personal gain; several robberies; unlawful handling of arms; and unlawful taking of a vehicle. 10. During the trial the applicant confessed to having participated in the robberies and the other crimes attributed to him. However, he argued that his personal role in the murders had been negligible, and that he had not had any intention of profiting personally from one of the three murders. 11. The applicant also complained to the court that he had been tortured by the investigative authorities during the pre-trial investigation. The court ordered the Dnipropetrovsk Prosecutors’ Office to conduct an inquiry into the applicant’s complaint, which found that there was no case of illtreatment to answer. 12. On 6 January 2005 the applicant was convicted as charged and sentenced to life imprisonment. 13. The applicant and A. K. (his legal-aid lawyer) drafted separate cassation appeals. The applicant’s lawyer challenged the assessment of the facts and application of the law in respect of several points and requested a milder sentence. 14. The applicant, for his own part, complained, primarily, about the severity of his sentence, of ill-treatment by the investigative authorities, and of the court’s failure to question Z., another alleged criminal association member, who had been on a wanted list. In his appeal, the applicant also stated that he wanted to further substantiate his arguments once he had had a chance to study the case file. 15. On 23 and 24 March and 4 and 5 April 2005 the applicant was brought into the Regional Court’s offices to study the case file in order to prepare his cassation appeal. He signed affidavits asserting that he had read the entire case file. 16. On 14 June 2005 the Supreme Court of Ukraine adjourned consideration of the case until 13 September 2005 in order to ensure the applicant’s and his co-defendants’ presence at the proceedings. 17. On 28 June 2005 the applicant complained to the Supreme Court that he had not been properly familiarised with the case-file materials. He mentioned, in particular, that he had only been brought to the court’s records office to study the file on four occasions. He further noted that he had remained in handcuffs at all times and that this had not only been physically painful, but also detrimental to his ability to take notes. Lastly, the applicant noted that he had been coerced into signing the affidavits that stated that he had properly studied the file. The applicant asked the Supreme Court to ensure that he be provided with an opportunity to study the case file in his lawyer’s presence. 18. On 13 September 2005 the applicant asked the Supreme Court to adjourn the case, regard being had to the failure of his legal-aid lawyer to appear. He further asked the Supreme Court to oblige A.K. to perform her professional duties, to admit L.L., his mother, as his lay defence representative, and to provide him with an opportunity to familiarise himself with the case file in order to prepare his defence. 19. On the same date the Supreme Court adjourned the hearing. It noted that the applicant’s request for additional familiarisation with the case file was ill-founded, as he had signed affidavits stating that he had properly studied it. On the other hand, the Supreme Court found the applicant’s concern about his lawyer’s absence substantiated and ruled as follows: “to give [the applicant] the opportunity to appoint a lawyer or a defence representative to participate in the cassation proceedings in order to represent his interests. The administration of the SIZO should assist [the applicant] in establishing a connection with his defence representative or persons who can appoint a defence representative”. 20. On 15 September 2005 the applicant further complained to the Supreme Court that he had not been familiarised with the appeals brought by other parties to the proceedings. 21. On 4 October 2005 the Supreme Court held a hearing in the applicant’s case in the absence of his lawyer. At the beginning of the hearing, the applicant requested that the Supreme Court act on his previous requests. The prosecutor opined that the applicant had had sufficient opportunity to familiarise himself with the case file. The court rejected the applicant’s requests as unfounded and upheld the judgment of the firstinstance court. 22. On 12 June 2006 the Court’s Registry asked the applicant to provide certified copies of his appeals and his procedural requests addressed to the Regional and the Supreme Courts. 23. On 29 June 2006 the applicant asked the Regional Court’s records office to provide him with the documents at issue in connection with the Registry’s request. 24. On 6 July 2006 the Regional Court rejected this request, referring to the lack of any obligation under national law to make copies of case file documents. 25. On 31 January 2007 L.L., the applicant’s mother, who was also acting as his representative in the Convention proceedings at the material time, lodged a new request with the Regional Court on his behalf. In particular, referring to Article 34 of the Convention, she requested that the Regional Court either mail certified copies of the documents requested by the Court’s Registry to her home address or inform her in writing where they could be delivered to her. 26. On 9 February 2007 the Regional Court returned her request without providing the copies sought, noting that “the Code of Criminal Procedure in force does not oblige the court to prepare copies of materials from a criminal case file”. 27. From 27 January 2004 until 4 August 2006, with short interruptions, the applicant was detained in Dnipropetrovsk pre-trial detention facility no. 3 (“SIZO no. 3”). 28. According to the applicant, he had been detained with another individual in a cell measuring 1.90 by 3.70 square metres for most of the day. The applicant’s bunk, which had measured 1.70 metres by 50 centimetres, had had raised bars at its ends. Given that the applicant was 1.84 m tall, he had been unable to stretch out fully and get adequate sleep. The cell had been located in the basement, scarcely letting in daylight or fresh air, while the electric light had been dim and there had not been any artificial ventilation. The windows had had grates on them, which had further blocked natural light from coming in through the window. Moreover, they had been blocked by the upper bunk of the bed. The air had been damp and ventilation had been insufficient. The toilet had not been separated from the living quarters. It had smelled of excrement and had frequently been flooded. The applicant had made a cover for the toilet (a “grusha”) to prevent unpleasant smells. However, it had been confiscated by the prison authorities. They had likewise routinely confiscated a number of his other belongings and appliances for no apparent reason, including food, a TV antenna and a string, without which it had not been possible to open the window. Consequently, the applicant’s access to information from the outside world had been severely limited and he had been unable to open the window to disperse the smell from the toilet. The food had been meagre and had mostly consisted of wheat cereal and bread. The detainees had only been able to wash themselves, cut their nails and shave once a week in a special bathing facility. All of the detainees had shared the same pair of scissors. They had remained handcuffed by the hand to the wall while they had been cutting their nails and shaving, which had felt degrading. 29. On 11 November 2005 the applicant’s cellmate had hit him on the head with a metal mug while he was asleep, causing an open wound. Notwithstanding the applicant’s numerous requests for medical assistance on account of this incident, he had only been provided with oxygenated water and a bandage. The injury had resulted in the applicant having frequent headaches, vertigo, vomiting, and pus and blood dripping from one ear, which he had treated himself with his own urine. 30. On 28 February 2006 the applicant had been severely beaten by SIZO guards for allegedly organising inter-cell communication. In spite of his repeated requests for medical assistance on account of the injuries sustained as a result of the beating, the applicant had merely been given painkillers. 33. The Government submitted that the conditions of the applicant’s detention in SIZO no. 3 had been adequate. They presented a certificate issued by the SIZO administration dated February 2010 attesting that, according to their inspection on that date, there had been at least 3.5 square metres of available space per detainee in each cell. The dimensions of bunks used in the SIZO had been 185 centimetres by 70 centimetres. The basement floor cells, where the life prisoners had been held, had had windows measuring 110 centimetres by 100 centimetres, which size had afforded sufficient access to daylight. In the evenings the cells had been lit by 100 watt lamps, which had enabled the detainees to read and write without hurting their eyes. Each window had had a special ventilation pane, which had been able to be opened to air the cells. In addition, an electric ventilator in the corridor had ensured artificial ventilation of the cells. The cells had been fitted with radiators to ensure a stable temperature of between 18 and 20 degrees Celsius. Each cell had been equipped with two metal bunks, a chair, a shelf for personal belongings, a table, two small cupboards which could also be used as stools for sitting, a clothes hanger, a tap with a sink, a mirror, and a toilet. The toilets had had bent pipes to prevent unpleasant odours and had been separated from the living area by fixed partitions. 34. The Government further submitted (without providing any supporting documents) that, as regards sanitary arrangements, the SIZO’s detainees had had weekly access to bathing facilities, where they had also been provided with razors and scissors. Disinfectant had been used on a regular basis to clean the cells and other premises. Twice a year (in the spring and the autumn) comprehensive measures against rats had been implemented and the entire SIZO facility had been disinfected. The detainees had been provided with meals three times a day, freshly cooked by the SIZO’s cooks. Food had been varied and in conformity with applicable nutrition regulations. 35. No instances of seizure of or damage to the applicant’s belongings by the SIZO administration had been recorded. 36. As regards medical assistance, on 5 December 2005 the applicant had been diagnosed as suffering from an acute ear infection. On 6 February 2006 he had consulted an otolaryngologist and had been diagnosed with a fistula in one of his ear canals. Between 29 January and 7 February 2007 the applicant had received in-patient treatment for pulled leg muscles. In February 2007, having been transferred to a correctional colony to serve his sentence, the applicant had undergone an operation to extract a foreign body from his left ear canal. 37. As regards the incident of 28 February 2006, the applicant had never complained about it before to the domestic authorities. There was no evidence that this incident had ever taken place. 38. Relevant provisions of the Code of Criminal Procedure as worded at the material time read as follows: ... A defence representative shall be appointed in the event: ... (2) that ... the defendant wishes to engage a defence representative, but lacking funds or in view of other objective circumstances is unable to do so. ... ... if it is impossible to obtain the presence of the defence representative selected by the ... defendant within seventy-two hours ... the court may propose that the ... defendant appoint another defence representative. If this defence representative is unable to appear in the case within twenty-four hours and also in the event that ... the defendant has not engaged another defence representative within this timeframe ... the ... judge by a ruling or the court by a decision shall appoint a defence representative.” “To support or disprove arguments presented in an appeal, the persons who advanced them may submit documents to the cassation court which were not in the case file...” “The cassation court shall review the lawfulness and reasonableness of the court judgment... or part [thereof] which was appealed. The cassation court may exceed the scope of a cassation claim, if doing so would not prejudice the situation of the convicted or acquitted person...” “Grounds for annulment or modification of the judgment, decision or ruling shall be: (1) substantial breach of the law of criminal procedure; (2) incorrect application of the criminal law; (3) the selected penalty being disproportionate to the gravity of the offence and the personality of the convicted person. A judgment of the court of appeal taken by it as a first-instance court may be annulled or modified [on the basis of] bias, incompleteness of any inquiry, pre-trial or trial investigation or inconsistency in the court’...” 39. Relevant Council of Europe and other materials establishing standards for conditions of detention and international reports concerning the conditions of detention in Ukraine can be found in the judgment in the case of Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010.