CASE OF KOKTYSH v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Conditional) (Belarus);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy
Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant, who was born in 1980, is a Belarusian youth activist and musician. He is currently detained in the Pre-Trial Detention Centre no. 15 (hereinafter, “the SIZO”) in Simferopol (Сімферопольський слідчий ізолятор), Ukraine. 6. In 2001 the applicant and R. were charged with the murder (under Article 139 § 2 of the Belarusian Criminal Code) and robbery of M. According to the above Article, the death penalty is foreseen, inter alia, as a sanction for murder. 7. On 7 December 2001 the Brestskiy Regional Court of Belarus acquitted the applicant and R. In particular, the court emphasised that during their interrogations the applicant and R. had been subjected to physical and psychological pressure and had been forced to confess, and therefore their confessions during the pre-trial investigation could not be taken into consideration. 8. On 1 February 2002 the Supreme Court of Belarus upheld this decision. 9. On 18 May 2002 these decisions were quashed by the Presidium of the Supreme Court of Belarus under the extraordinary review procedure upon an application (“protest”) lodged by a prosecutor, and the criminal proceedings were resumed. 10. In June 2002 the applicant moved to Ukraine, where he was registered by the Zhytomyr passport service. He travelled several times to Poland and married in 2003. Therefore, according to the applicant, he has not been hiding from justice. 11. On 28 June 2002 the Brestskiy Regional Court stayed the criminal proceedings since the applicant’s whereabouts were unknown. 12. On 9 July 2002 the Brestskiy Regional Prosecutor decided to search for the applicant. 13. On an unspecified date an international search warrant for the applicant was issued. 14. On 25 June 2007 the applicant was arrested in Sevastopol, Ukraine. The applicant stated that during his arrest the policemen had fired several shots in order to intimidate him and that he had been subjected to physical and psychological pressure. 15. On 27 June 2007 the Balaklava District Court of Sevastopol ordered the applicant’s detention for forty days with a view to his extradition to Belarus. 16. On 9 July 2007 the General Prosecutor’s Office of Belarus requested the General Prosecutor’s Office of Ukraine (hereinafter, “the GPO”) to extradite the applicant. In its request the General Prosecutor’s Office of Belarus indicated that “Koktysh I.G. would be tried only for the crimes he was extradited for, and he would not be sentenced to the death penalty”. 17. On 3 August 2007 the Balaklava Local Court decided that the applicant should remain in detention pending extradition. 18. On 10 October 2007, under Rule 39 of the Rules of Court, the President of the Court’s Fifth Section indicated to the Government of Ukraine that the applicant should not be extradited to Belarus. 19. On 15 October 2007 the General Prosecutor’s Office of Belarus informed the GPO that in the event of the applicant’s extradition he would not be tortured, ill-treated or discriminated against and would be given a fair trial. If necessary, he would be provided with medical assistance and treatment. 20. On 19 May 2008 the Balaklava District Court informed the applicant that his request for release could not be considered as the current legislation did not foresee the possibility of challenging detention pending extradition. 21. On 3 June and 7 July 2009 the Balaklava District Court rejected the applicant’s further requests for release since the law in force did not foresee the possibility of replacing his detention pending extradition by another non-custodial preventive measure. 22. From 26 June to 5 July 2007 the applicant was detained in the Sevastopol Temporary Detention Centre in cell no. 1 (Севастопольський ізолятор тимчасового утримання) (hereinafter, “the ITT”). He submitted that in his cell, which measured 4 x 8 metres, around 20 persons had been detained, while it had been equipped with only two sleeping places. There were no sheets, pillows or blankets but only a couple of dirty mattresses. The cell was very dirty, without ventilation or proper lighting, and infested with different insects. Nearly all of the detainees smoked and this caused the applicant intense suffering since he has bronchial asthma. The ITT did not contain a shower and the detainees could not go for a walk. The applicant stated that the daily food had been limited to a piece of bread, a plate of poor-quality soup and water. The applicant was not provided with any medical assistance in spite of suffering from asthma. On 2-5 August 2007 the applicant was detained in cell no. 2 with similar conditions of detention. 23. From 6 July 2007 to date the applicant has been detained in the SIZO. The applicant submitted that during his transportation from the ITT to the SIZO he had been placed in a special van together with 12 other people while there had been space available for only 6. The temperature in the van reached 600C and there was neither drinking water nor ventilation. 24. In the SIZO, according to the applicant, he is detained in a 2 x 4 metre cell together with 9 other detainees. The cell has no ventilation or sufficient lighting and all of the detainees smoke apart from the applicant. The detainees can shower only once a week. The applicant stated that the medical assistance he received in the SIZO was inadequate. 25. On 25 June 2007 the applicant arrived at the ITT. He was questioned about his state of health by the officer on duty but the applicant did not complain about his health problems. During his stay in the ITT (25 June-5 July 2007 and 2-5 August 2007) the applicant did not complain about his health problems either. 26. From 26 June 2007 until 5 July 2007 the applicant was detained in cell no. 1. The cell measured 19.3 sq. m. At the material time from 16 to 21 persons were detained there. 27. From 2 August 2007 until 5 August 2007 the applicant was detained in cell no. 2, which measured 17.4 sq. m. 11 other persons were detained at that time together with the applicant. 28. Every cell was equipped with a WC and a wash-basin. The detainees were provided with bed sheets and were served hot food three times a day. The cells are regularly cleaned and disinfected. The detainees take a hot shower at the week-end or during the week if they so wish. 29. The ITT has a ventilation system which functions non-stop. The detainees also have a daily one-hour walk in two specially equipped yards. 30. The cells are equipped with two electric light-bulbs and the detainees also have access to daylight. 31. During the applicant’s stay in the SIZO, since 5 July 2007, he has been detained in three different cells (nos. 57, 60 and 68), which measure between 12.4 sq. m and 13.2 sq. m. Together with him, from 4 to 9 persons have been detained during different periods of time. 32. The cells are equipped with the necessary number of sleeping places, sufficient electric and natural light, separated WCs, wash basins, tables and chairs. There is ventilation and the conditions of the applicant’s detention have complied with the sanitary standards. The applicant has been able to take a shower once a week. 33. On the day of his arrival the applicant was examined in the SIZO hospital wing and diagnosed with asthma. During his stay in the SIZO the applicant has been further examined and treated on numerous occasions. 34. On 5 July the applicant was transported from the ITT to the SIZO and on 2 August 2007 he was returned to the ITT. On 5 August 2007 he was again taken to the SIZO. 35. Specially equipped vehicles and railway carriages were used for the transportation. Every vehicle can carry up to 22 persons and every railway carriage up to 80. The special police forces in charge of the transportation of prisoners transported the applicant in compliance with the requirements of the national legislation. 36. The relevant international and domestic law and practice in respect of the applicant’s extradition are summarised in the Soldatenko v. Ukraine (no. 2440/07, §§ 21-29 and § 31, 23 October 2008) and Svetlorusov v. Ukraine (no. 2929/05, §§ 32-34, 12 March 2009) judgments. 37. Under Article 11, detainees must be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 sq. m. “... 2. Such abuses take different forms, including: 2.4. the continued use of the death penalty and the particularly cruel, secretive method of execution by gunshot, without informing the condemned persons themselves or their families until the last moment. Belarus is the last country on the European continent that still implements the death penalty. The existence of the death penalty excludes the extradition to Belarus of any person accused of a capital offence by member states of the Council of Europe...” “...17. The Assembly regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions...” “...The Special Rapporteur regrets that the Government of Belarus, in 2006 as in 2004 and 2005, has not responded favourably to his request to visit the country and has in general not cooperated with him in the fulfilment of his mandate... ...13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pre-trial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police...” “...The situation of human rights in Belarus in 2007 continued to significantly deteriorate, as documented in the reports of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and the report of the Special Rapporteur on the situation of human rights in Belarus, which found that systematic violations of human rights continue to take place in Belarus... ...1. [The Assembly] expresses deep concern: (a) About the continued use of the criminal justice system to silence political opposition and human rights defenders, including through arbitrary detention, lack of due process and closed political trials of leading opposition figures and human rights defenders; (b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus...” 38. The Country Report on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2008, released on 25 February 2009, noted with respect to Belarus: “The government’s human rights record remained very poor as government authorities continued to commit frequent serious abuses... ...Prison conditions remained extremely poor, and reports of abuse of prisoners and detainees continued. Arbitrary arrests, detentions, and imprisonment of citizens for political reasons, criticizing officials, or for participating in demonstrations also continued... c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces continued to beat detainees and demonstrators... ...Police also beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities... ...On September 2, 2008, the International Federation of Human Rights (FIDH) in cooperation with the domestic human rights NGO "Vyasna" released a joint report, Conditions of Detention in Belarus, based on interviews with more than 30 persons. The report noted "substantial evidence" of the use of torture and mistreatment of suspects during criminal and administrative investigations... e. Denial of Fair Public Trial The constitution provides for an independent judiciary; however, the government did not respect judicial independence in practice. Corruption, inefficiency, and political interference were prevalent in the judiciary. There was evidence that prosecutors and courts convicted individuals on false and politically motivated charges, and that executive and local authorities dictated the outcomes of trials...” “...Death penalty ...According to media reports, four people were executed during the year... ...In December, Belarus abstained on a UN General Assembly resolution calling for a worldwide moratorium on executions...” 39. The relevant extracts from the European Prison Rules read as follows: “4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ... 18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and ... 18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. 18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. ... 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. ... 21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness. 22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. 22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law. 22.3 Food shall be prepared and served hygienically. 22.4 There shall be three meals a day with reasonable intervals between them. ... 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. ... 32.2 The transport of prisoners in conveyances with inadequate ventilation or light, or which would subject them in any way to unnecessary physical hardship or indignity, shall be prohibited.” 40. Relevant extracts from the reports of the Committee for the Prevention of Torture following the Committee’s visits to Ukraine in 1998 – 2002 can be found in the judgment in the case of Yakovenko v. Ukraine, (no. 15825/06, §§ 56-61). 41. On 14 January 2004 the Ukrainian Parliament Commissioner for Human Rights, after her visit to the penitentiary institutions of the Autonomous Republic of Crimea (hereinafter, “the ARC”), in her address to the members of the Verkhovna Rada of the ARC, published on the Ukrainian Parliament Commissioner’s Internet site, mentioned the overcrowding in the Simferopol SIZO, lack of daylight in the cells, the absence of outside walks and insufficient nutrition. In the majority of the ITTs visited by her, the detainees were provided with food only once a day. In the Sevastopol ITT there were 206 persons detained while there were only 82 places. 42. On 11 August 2008 the press service of the Ukrainian Parliament Commissioner for Human Rights published a press release on the Commissioner’s further visit to the penitentiary institutions of the ARC. The Sevastopol ITT was described as the worst. The cells were dirty, without sufficient daylight and ventilation, and outside walks were not regular. The detainees were not provided with mattresses, covers or bed linen. The cells were overcrowded and the detainees slept in turns. The conditions of transportation between the Sevastopol ITT and the Simferopol SIZO were unbearable. In particular, on 9 June 2008, 34 detainees were taken to the Sevastopol ITT but after spending 6 hours locked in the vehicle were sent back to the Simferopol SIZO because of overcrowding in the ITT. The trip lasted 14 hours and the detainees were practically not allowed to use the toilet and were not provided with water or food.