CASE OF LADA v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Carlo Ranzoni
5. The applicant was born in 1963 and lives in Khorly. 6. At the material time the applicant was the head of Khorly Village Council. 7. On 8 May 2007 he signed a permit allowing a businessman, Ya., to set up a tent with game machines in the village. This permit had no official stamp on it. According to the applicant, it was not stamped because the council’s accountant was away on a work matter and had the stamp with her. However, according to the court findings in the criminal case against the applicant (see below), the applicant told Ya. that the permit would be stamped upon receipt of 20,000 Ukrainian hryvnias (UAH – approximately 3,800 euros (EUR)). 8. On 14 May 2007 Ya. complained to the police. On the same day he was given audio and video-recording equipment and marked banknotes. When he entered the applicant’s office the applicant showed him a piece of paper with something written on it, pointed to the bus stop outside his window and said “There is a man out there”. Ya. went to the bus stop and gave money to V., who was standing there. Later, police officers seized the marked banknotes from V. in the presence of I. and L. 9. On the same day criminal proceedings were instituted against the applicant for requesting a bribe. 10. At 7 p.m. on 14 May 2007 the applicant was arrested. 11. On 16 May 2007 the applicant was charged with taking a bribe. 12. On 17 May 2007 the Komsomolskiy District Court (“the District Court”) authorised the applicant’s custody until 24 May 2007. The court held that there was no information about the applicant’s previous convictions, if any, or his family situation, state of health and so on; therefore the court “could not authorise a preventive measure, such as pre-trial detention”. That decision was not open to appeal. 13. On 22 May 2007 the District Court remanded the applicant in pre-trial detention, since he had been accused of a serious crime and might abscond, hinder the investigation or continue his criminal activity. 14. The applicant appealed. His lawyer indicated that, when requesting that the applicant be remanded in custody, the prosecutor’s office had failed to comply with the court decision of 17 May 2007 (see paragraph 12 above), and had submitted only documents referring to the absence of previous convictions and the applicant’s satisfactory state of health. The lawyer further argued that the applicant had not committed any crime, there were no indications that he would abscond or hinder the investigation, his state of health was not satisfactory, and that council members and village inhabitants had signed a petition for his release. 15. On 1 June 2007 the Kherson Regional Court of Appeal upheld the decision of 22 May 2007 (see paragraph 13 above). The court noted that the case file contained material confirming the applicant’s wish “to go to Russia to his brother”. It also noted that he might hinder the investigation by using his official position. 16. On 27 July 2007 the District Court released the applicant on bail. 17. On 16 January 2008 the District Court again remanded the applicant in pre-trial detention at the prosecutor’s request. The relevant decision reads as follows: “On 16 January 2008 the Komsomolskiy District Court of Kerson ... established: The criminal case concerning the accusation of [the applicant] under Article 368 paragraph 2 of the Criminal Code of Ukraine is pending before the Komsomolskiy District Court of Kherson. The prosecutor requested that the preventive measure against [the applicant] be changed in view of the fact that [the applicant], using publications in ... newspaper, is putting pressure on witnesses in the case (K. and A.) who have not yet been questioned by the trial court. [This] could affect the truthfulness of their testimony and their appearance before the court. In the hearing, the prosecutor further provided additional evidence to confirm the fact of [the applicant’s] putting pressure on I., a witness, and the victim, Ya. Having heard the prosecutor’s explanations, as well as [the applicant] and his lawyers, the court finds that the application has to be allowed on the following grounds. [The applicant] is accused of having committed a crime under Article 386 paragraph 2 of the Criminal Code of Ukraine. The sanction established for the crime is imprisonment for the period from five to nine years. On 27 July 2007 bail ... was chosen as a preventive measure in respect of [the applicant]. Pursuant to Article 148 of the Code of Criminal Procedure, preventive measures shall be applied to a defendant with the aim of preventing attempts ... to obstruct the truth from being established in a criminal case. ... Preventive measures shall be applied if there are sufficient grounds to consider that the defendant will try to abscond from the trial or obstruct the truth from being established in a case. [The applicant] has no criminal record, has committed a serious crime linked to his professional activity as the head of Khorol Village Council, is currently removed from his position and accordingly is not able to continue his criminal activity, [and] is well thought of at his place of work and place of residence. However, the court believes that [the applicant], acting through unidentified individuals, has taken steps aimed at obstructing the truth from being established in the case in the course of the court’s consideration of his case. Thus, according to statements of 28 December 2007 made by the victim, Ya., and I., a witness, unknown individuals acting on [the applicant’s] behalf, have put psychological pressure on them, trying to prevent their appearing at the hearing of 29 December 2007. The above-mentioned fact is evidence of a breach by [the applicant] of his undertakings. Bearing in mind that the court proceedings in the criminal case are still ongoing, that K. and A., witnesses, have not yet been questioned, and that there may be a need for additional questioning of I., a witness, and Ya., the victim, the court believes that the prosecutor’s application is well-founded and should be granted in order to prevent further possible pressure [being put] on the witnesses and the victim, and thus to eliminate obstacles to establishing the truth in the case ... Given what has been stated above, ... the court rules to change the preventive measure in respect of [the applicant] ... ” 18. On the same date the President of the District Court rejected an application by the applicant’s lawyer for the judge who was dealing with the case to be withdrawn on the basis of bias. He held that the expression “has committed a serious crime” used by the court concerned “the classification of the offence of which the applicant was accused”, and did not mean that the court was biased. 19. On 23 January 2008 the Kherson Regional Court of Appeal refused the applicant leave to appeal against the decision of 16 January 2008 remanding him in pre-trial detention (see paragraph 17 above), since that decision was not open to appeal. 20. On 15 and 22 February 2008 the applicant unsuccessfully asked the court to change the preventive measure to a non-custodial one. 21. On 29 February 2008 the District Court released the applicant on bail. It found that Ya. and I. had complained on 28 December 2007 to the police that that they had been threatened by individuals unknown to them. However, by 29 February 2008 no further investigation of this allegation had been carried out by the police, so it was decided that the applicant should be released. 22. On 16 April 2008 the District Court sentenced the applicant to five years’ imprisonment for taking a bribe. The applicant appealed, arguing, inter alia, that the principle of the presumption of innocence had been breached in his case. 23. On 24 June 2008 the Kherson Regional Court of Appeal upheld the District Court’s judgment. 24. On 26 February 2009 the Supreme Court of Ukraine rejected an appeal by the applicant on points of law. 25. The applicant served his sentence at Dariyivska Correctional Colony no. 10 (“the prison”) from 16 July 2008 to 14 March 2011. According to the applicant, there were up to ninety inmates in the living quarters. There was no ventilation. The washing facilities were situated in the basement, which was constantly flooded by underground water. There were five basins and three taps for 300 detainees. There was no electricity or light at night. The food was of a very low quality and the water was undrinkable. 26. According to the Government, the applicant was held in a block which measured 271.7 square metres and was designed to accommodate up to ninety prisoners, thus each prisoner had no less than 3 square metres of personal space. They did not provide any facts or comments with respect to the remainder of the applicant’s complaint.