ANDREY YAKOVENKO v. UKRAINE - 63727/11 - Chamber Judgment [2014] ECHR 271 (13 March 2014)

In the case of Andrey Yakovenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 18 February 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2585/06, subsequently no. 63727/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Andrey Olegovich Yakovenko (“the applicant”), on 15 December 2005.

2. The applicant was initially represented by Mr V. Chernikov and later by Mr V. Komarov, both lawyers practising in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.

3. The applicant alleged, in particular, that the physical conditions of his detention in Odessa and Kyiv pre-trial detention centres (SIZOs) and during his transportation from Sokyriany to Torez Colony had been intolerable and that there had been no effective domestic remedies for these complaints.

4. On 9 February 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1969 and lived in Odessa. He is currently serving a prison sentence in Ukraine.

A. Criminal proceedings against the applicant

6. In summer 2002 the applicant, who was the president of the Odessa Komsomol (Young Communist League) at the material time, unsuccessfully ran for the Odessa Regional Council. According to him, following the election campaign, the State Security Service of Ukraine (“SSU”) put in place secret surveillance measures against him.

7. On 15 December 2002 the SSU arrested the applicant in Odessa on suspicion of having organised a criminal group formed of Komsomol members and having planned and directed several violent crimes committed by its members.

8. On 16 December 2002 the applicant was taken for questioning to Mykolayiv, where several other individuals implicated in membership of the same group had been arrested and detained some time before.

9. On the afternoon of 16 December 2002 the applicant signed a notice that he had been informed of his rights as a suspect and expressed the wish to have a lawyer. On the same date the applicant was appointed a legal-aid lawyer, A.S. In his presence, the applicant terminated the appointment and stated that he agreed to be questioned without a lawyer, until his wife hired one privately.

10. On the same date the applicant was questioned and acknowledged his affiliation with the communist party and the Komsomol, a number of whose activists named by the investigator he knew in person. At the same time, the applicant denied having taken part or having been aware of any criminal activity by these individuals. The record of the applicant’s questioning was preceded by his signature, which was underneath a note summarising his rights as a suspect and stating that he had given his consent to take part in the questioning session without legal representation.

11. On the same date the applicant was placed in Mykolayiv temporary detention centre (ITT), which, according to him, had unsuitable living conditions. The applicant was subsequently remanded in custody and transferred to Mykolayiv pre-trial detention centre (SIZO).

12. On 17 December 2002 a confrontation was conducted between the applicant and A., one of the individuals implicated in membership of the applicant’s criminal group. The record of the confrontation notes that before the questioning, the investigator informed the parties of their procedural rights and asked the applicant whether, regard being had to the fact that he had no legal representation, he agreed to take part in the confrontation. The applicant expressed his willingness to take part in the confrontation, stating that he felt capable of representing himself at that point. Following this introduction, A., who was represented by a lawyer, testified that the applicant had planned and organised several robberies, in which A. and some other individuals from the Komsomol had been involved. Having heard A.’s statement, the applicant refused to take any further part in the confrontation without a lawyer and the confrontation was discontinued.

13. On 21 December 2002 lawyer A.A., hired by the applicant’s spouse, was admitted to the proceedings as the applicant’s representative.

14. On 25 December 2002 the applicant was indicted on a number of charges including organising and directing a terrorist group with a view to re-establishing a communist state by violent means and being in charge of several robberies (“expropriations”) committed in order to raise funds for the group. Following his indictment, the applicant was questioned in A.A.’s presence. During questioning, the applicant reiterated his previous position and denied involvement in any criminal activity. Asked whether he had been subjected to any psychological or physical ill-treatment by the investigative authority, the applicant stated that he had not been subjected to any ill-treatment.

15. On 21 February 2003 the applicant terminated A.A.’s appointment, as the further investigation of his case had been transferred to the Odessa branch of the SSU, whereas A.A. practiced in Mykolayiv.

16. On 3 March 2003 the applicant was transported to Odessa no. 21 pre-trial detention facility (“the Odessa SIZO”), where he was detained until November 2005.

17. On 19 March 2003 the applicant was further questioned as a criminal defendant. Before the questioning session began, he signed a waiver of his right to legal representation, having indicated that he was capable of defending his own interests. During questioning, the applicant refused to answer any questions, referring to his constitutional right to remain silent. Questioned several more times in spring 2003, the applicant signed further waivers of his right to legal representation and chose to remain silent.

18. On 18 April 2003, referring to his ability to represent his own interests, the applicant refused to accept the appointment of legal-aid lawyers D. and R., who had been selected by the authorities, and asked for no further legal-aid lawyers to be appointed during the investigation stage.

19. On 21 May 2003 lawyer A. K., engaged by the applicant’s wife, was admitted to the proceedings as the applicant’s new representative. The applicant, questioned in her presence, refused to testify and chose to remain silent.

20. On 27 May 2003 the investigation was finished and the applicant, along with ten other individuals implicated in membership of the same criminal group, was committed to stand trial before the Odessa Regional Court of Appeal (“Regional Court”), acting as a first-instance court.

21. On 24 July 2003 the applicant and his lawyer A.K. both signed an affidavit that they had familiarised themselves with the forty-four volume case file.

22. In the beginning of September 2003 the Regional Court held a preparatory hearing in the applicant’s case and allowed requests made by the applicant’s co-defendants R., S. and D. for additional time to study the case-file materials.

23. On 3 September 2003 the applicant’s spouse terminated A. K.’s appointment, referring to financial difficulties, and the applicant asked the court to appoint a lawyer to represent him.

24. At the next court hearing (on 24 September 2003) the Regional Court appointed O.K. as the applicant’s new lawyer and granted her time to study the case file. On the same date the court rejected the applicant’s request for additional time to study the case file, referring, in particular, to his affidavit that he had studied it in full, to his failure to lodge this request before the beginning of the trial, and to the fact that the applicant would be able to seek to have case-file documents that were to be examined at a particular hearing read out in full or in part by the court before their examination.

25. On an unspecified date the Regional Court rejected the applicant’s request to appoint his father, who was not a lawyer, as his lay defender, referring to a conflict of interests that would arise if this was allowed. In particular, the applicant’s father had been summoned for questioning as a witness in the case. According to the applicant, his father was never questioned in the end and never even received an official summons.

26. On 17 November 2003 the applicant’s lawyer, O.K., did not attend the hearing.

27. On 24, 25 and 26 November 2003 the applicant asked for O.K. to be excluded from the proceedings, alleging that she had been passive in representing his interests, had not been supportive of his chosen defence strategy, and that he would prefer to be represented by a privately-funded lawyer. On 26 November 2003 the applicant’s request was allowed and he was given until 1 December 2003 to engage a privately-funded lawyer.

28. On 1 December 2003, the applicant still not having engaged a privately-funded lawyer, the court appointed A.B. as his new legal-aid lawyer.

29. On 26 January 2004 the applicant sought the replacement of his court-appointed lawyer A.B. with O.K., who had previously represented him as a court-appointed lawyer but who had now been privately engaged by his wife. This request was allowed and O.K. represented the applicant until the end of the trial.

30. During the trial, the applicant acknowledged that he had supported communist ideas and had taken part in publishing and distributing propaganda. However, he denied having been involved in any violent crimes. The applicant also complained that the investigative authorities had subjected his co-defendants and himself to ill-treatment with a view to breaking their moral resistance. In particular, upon the applicant’s arrest in December 2002, the officers had threatened him with physical ill-treatment and had made inappropriate remarks concerning his wife and family life. He had also been transported to Mykolayiv lying handcuffed on the floor of the prison van and blindfolded with a dark hat, which had made him suffocate and caused him to suffer a heart attack.

31. 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 into the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment at the investigation stage. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and there had been no evidence of ill-treatment of the other co-defendants.

32. According to the applicant, it was very difficult for him to concentrate during the trial. In particular, his health was adversely affected by the conditions of his detention and the lack of medical assistance for his heart problems available to him in Odessa SIZO.

33. He noted, in particular, that between March and November 2003 he was detained in cell no. 187 in block 2 of Odessa SIZO, which was about eight square metres in size, had four beds and, at the time of his arrival, accommodated five detainees. The sanitary facilities were not separated from the living quarters. The wardens thwarted all the inmates’ attempts to gain some privacy by separating them with a curtain. The applicant’s inmates were repeat offenders. Some of them suffered from contagious diseases, such as HIV and tuberculosis. The administration ignored the applicant’s demands to be moved, as a healthy person with no criminal record, to a different cell. In November 2003 the applicant was relocated to a different cell, which was very similar in terms of physical and sanitary conditions. In addition, access to bathing facilities was very irregular. Furthermore, on various occasions the detainees were arbitrarily and brutally searched and beaten by special detachments of the armed forces.

34. The applicant further noted that he suffered from hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia, for which he received no proper care in Odessa SIZO. The applicant’s family sent him medicines, which on some occasions were unreasonably withheld.

35. The applicant also submitted that on court days he and his co-defendants were routinely taken out of their cells at about 6 a.m. and placed with some 20-30 other inmates scheduled to be transported on that day in a special transit box, which measured some 15-20 square metres, had no windows and no heating. In such conditions the applicant and his co-defendants had to wait several hours for a prison van to come. Upon their return from court, they also routinely had to wait for several hours in the same holding area before being escorted to their regular cells. As a result, they missed meal time and were often left hungry. The “packed lunches” provided to them consisted solely of bread. Sometimes hot lunches were made available at court, but their provision was irregular.

36. The applicant also maintained that he had raised complaints about these issues in court, but to no avail. He presented unofficial copies of court transcripts, according to which on 22 December 2003 the applicant asked for a hearing to be adjourned as he felt unwell. On 9 January 2004 the applicant asked for a medical appointment in a cardiology clinic. On 10 January 2004 he complained in court that on that day the convoy officers had made the defendants run, while handcuffed and bent over, up to the courtroom located on the sixth floor and had beaten his co-defendant P., who had stumbled and fallen. On 3 February 2004 the applicant complained that he was only allowed to have one-hour daily outdoor walks, while his heart conditions called for him to walk for two hours a day. On 12 February 2004 the applicant asked the court to investigate the conditions of detention in Odessa SIZO, alleging that his and his co-defendants’ health had been deteriorating. On 15 April 2004 the applicant complained to the Regional Court that on 14 April 2004 he and his co-defendants had been taken out of their cells at 8 a.m. and they had been held in the transit box, which had been cold, until 2 p.m. without lunch. Finally on 16 April 2004 the applicant supported a complaint lodged by his co-defendant S., according to whom on the preceding day he and his co-defendants had had to spend five hours in the cold transit box. As can be seen from the same transcript, the presiding judge advised the applicant and S. to address their complaints to the SIZO governor, which advice they rejected as futile.

37. According to the Government, the conditions of the applicant’s detention were sufficient to meet his basic needs and compatible with his state of health. While the records enabling the identification of the applicant’s inmates and their health status had not been preserved, inmates suffering from contagious diseases were segregated from other detainees in accordance with the applicable rules. The Government provided numbers of various cells in which the applicant was held throughout his time in Odessa SIZO and indicated that these cells measured from 7.6 to 8.5 square metres and were designed to accommodate four inmates each and had not been overcrowded. They were equipped with windows giving sufficient access to natural light, had functioning sanitary facilities, tap water, heating, electric light and ventilation. Detainees were provided with three meals per day, one-hour daily walks and weekly access to bathing facilities.

38. The Government further maintained that the applicant’s state of health had been regularly monitored by the SIZO medical staff on account of his pre-existing conditions (hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia). In December 2003 the applicant underwent inpatient treatment in the SIZO medical unit for his premature ventricular contractions (arrhythmia). In addition, on several occasions the applicant also had consultations with civilian specialist doctors. In particular, on 15 January 2004, following the applicant’s request for a consultation with a civilian cardiologist, he was examined by the Odessa Emergency Clinic’s cardiologist, who confirmed his previous diagnoses and gave recommendations as to his further outpatient treatment, which was administered in the SIZO. In March 2004 the applicant underwent a medical assessment by a panel of civilian doctors and was certified to be in satisfactory health and fit for detention and trial. The Government presented a copy of a medical certificate, according to which on 12 March 2004 the applicant had been examined by an ophthalmologist, a urologist, a physician, a pulmonologist, a cardiologist and a neurologist from the Odessa Regional Hospital.

39. The Government also maintained that the applicant and his co-defendants had always been promptly transported to and from the courthouse and had received breakfast and dinner in the SIZO. They had also been provided with either a packed lunch or hot lunch delivered to the court on hearing days. The catering had been organised by officer K., and, while copies of the available menus had not been kept, there was no record of any irregularity in the catering arrangements, which had been regulated by law.

40. The Government also maintained that there was no record of any complaints by the applicant or his co-defendants, either with the SIZO administration or with the Odessa Prosecutor’s Office, concerning the conditions of their detention, transportation, catering or medical treatment. They presented affidavits by the Odessa SIZO governor and on behalf of the Odessa Prosecutor’s Office in this respect.

41. On 19 July 2004 the Regional Court convicted the applicant of propagating a violent revolt against the constitutional order and attempting to undermine the territorial integrity of Ukraine; organising and running a criminal group; participating in a terrorist act (detonation of an explosive in a rubbish bin near the SSU headquarters in Kyiv); smuggling goods across the Russian border; unlawful handling of firearms and explosives; several armed robberies; and engagement of a minor in criminal activity. The applicant was sentenced to fourteen years’ imprisonment. The court also dismissed allegations of ill-treatment raised in respect of the applicant and some of his co-defendants as unsubstantiated. Finally, it noted that, insofar as the complaints of inadequate medical assistance in Odessa SIZO were concerned, the applicant had been examined by civilian medical specialists in March 2004 and had been found to be in a satisfactory state of health and fit to take part in the court proceedings.

42. On 18 August 2004 the applicant lodged a cassation appeal against this judgment. In his statement of appeal, the applicant reiterated his innocence and his allegations of ill-treatment advanced during the trial. He also reiterated that no medical assistance necessitated by his chronic conditions had been made available to him in Odessa SIZO and that the conditions of his and his co-defendants’ transport to the court premises had been inhuman. In this respect he noted that on 10 January 2004 the convoy had made him and his co-defendants run to the sixth-floor courtroom while handcuffed and bent over and that on 10 March 2004 the detainees had been arbitrarily held in the prison van for an extra two hours on the way back to the SIZO. The applicant further complained in his cassation appeal of a breach of his right to mount a defence. He noted in this respect that he had not been provided with a lawyer upon his arrest; his request to have his father appointed as his lay defender had been rejected; and his lawyer O.K. had not attended the hearing of 17 November 2003. Finally, the applicant complained that his right to have sufficient time and facilities for the preparation of his defence had been breached, as the Regional Court had rejected his request for an extension of time in which to study the case-file materials in preparation for the trial. The applicant also mentioned that he was intending to supplement his statement of appeal with further submissions. No copies of any such submissions were provided to the Court.

43. On 26 July 2005 the Supreme Court of Ukraine re-qualified the applicant’s conviction for smuggling as aiding and abetting smuggling and otherwise upheld the first-instance court’s judgment. The conviction for distribution of propaganda and attempting to undermine the territorial integrity of Ukraine was not reviewed, as the applicant had not lodged an appeal against it. In its decision, the Supreme Court noted, in particular, that the evidence of the applicant’s guilt included the testimony of his co-defendants and victims of his crimes given during the trial and that there was no evidence that any statements obtained during the pre-trial investigation had been extracted through ill-treatment or in breach of the applicant’s or his co-defendants’ right to mount a defence. Finally, it noted that the Regional Court had properly rejected the applicant’s request for further time in which to study the case-file materials, as it was unsubstantiated.

44. In November 2005 the applicant was transferred to Sokyriany no. 67 Correctional Colony (“Sokyriany Colony”) to serve his sentence.

45. In February 2009 the applicant’s lawyer, based in Moscow, Russia, asked the Regional Court to send him a number of documents from the applicant’s case file by post.

46. On 25 June 2009 the court denied this request, noting, in particular, that it had no facilities with which to prepare and send the copies and that the lawyer could study the case file on the court’s premises.

B. The applicant’s post-conviction detention

1. Detention in Kyiv SIZO

47. Between 17 June and 2 August 2005 the applicant was detained in Kyiv pre-trial detention facility (“Kyiv SIZO”) awaiting the review of his conviction in the cassation proceedings.

48. According to the applicant, the conditions of his detention were detrimental to his health and incompatible with human dignity. In particular, the facility was extremely overcrowded. A cell which contained eleven sleeping places was occupied by twenty-two inmates. The window was covered with metal shutters, barely letting in air and light. The electric light provided in the evenings was so dim that reading or writing could hurt the eyes. The sanitary facilities were not separated from the living quarters. The cell was not ventilated, the metal shutters overheated and the temperature often reached forty degrees. The air, mattresses and pillows were very damp. The provision and change of bedding was irregular. During the one-and-a-half months in which he was held there, the applicant only once had access to the bathing facility. He also received no medical help for his heart problems, which were bothering him because of the unsuitable physical conditions of his detention.

49. According to the Government, the conditions of the applicant’s detention were reasonably adapted to his needs. The applicant stayed in cells nos. 101, 103 and 110, measuring 60.9 square metres, 31.4 square metres and 9.7 square metres respectively. At the material time cell 101, which was designed to accommodate thirty-eight inmates, was occupied by thirty-four; cell 103, which was designed to accommodate twenty inmates, was occupied by fourteen; and cell 110, which was designed for four inmates, was filled to its capacity. All of the cells were equipped with windows letting in natural light and fresh air, sanitary facilities, sinks, artificial ventilation, refrigerators and televisions. The average temperature in the cells was 20-23 degrees Celsius. The detainees were supplied with soap and bedding, which was regularly changed, and could also buy toiletries in the SIZO shop, if they so wished. They were also provided with three meals a day, and were allowed daily one-hour walks and weekly access to the bathing facility.

2. Detention in Sokyriany Colony

50. On 7 November 2005 the applicant was transferred to Sokyriany Colony, where he served his sentence until July 2006.

51. According to the applicant, upon his arrival on 7 November 2005 and until 15 November 2005 he was detained in the intake area (quarantine cell), which was very damp and unheated. His warm civilian clothes were seized and he was provided with a prison uniform in a size too small for him. This was not remedied until December 2005, when his mother brought warm clothes, which he was allowed to keep. During his mother’s visit, the applicant was allowed to stay with her in the colony’s visitor hostel, which was also barely heated. On various occasions the administration blocked or delayed the applicant’s correspondence and the delivery of communist newspapers to which the applicant subscribed. The applicant was not provided with appropriate medical care and treatment. In addition, the colony administration exerted arbitrary psychological pressure on him by subjecting him to special supervision (for example, the administration placed his bed by the entrance door to the cell in order to be able to supervise him more effectively).

52. According to the applicant, he and his mother (on his behalf) brought the aforementioned matters to the attention of the colony administration and the prosecutor’s office. However, their complaints were either not dispatched, ignored, or poorly investigated into.

53. As is evident from the case file, in 2006 the applicant’s mother lodged several complaints with various authorities, in which she referred to irregularities in the colony postal unit’s handling of the applicant’s correspondence and periodical subscriptions, a prohibition on the detainees keeping sugar in the cells, the poor heating of the colony’s visitor hostel and the disappearance of 200 hryvnias (UAH) transferred by her to the applicant’s account.

54. On 31 March and 25 May 2006 the Chernivtsi Regional Prosecutor’s Office acknowledged certain irregularities in the operation of the colony’s postal unit in their responses to the applicant’s mother and notified her that disciplinary proceedings had been instituted against the officer responsible, while the colony governor had been instructed to improve the oversight of the postal service operation. They further noted that the detainees were forbidden to keep sugar in the cells to prevent alcohol production by them and that in winter 2006 the visitor accommodation had been equipped with movable radiators. Finally, they assured the applicant’s mother that the money purportedly lost had been duly credited to the applicant’s account.

55. On 6 June 2006 the applicant’s mother wrote a letter to the Chernivtsi Prosecutor’s Office acknowledging an improvement in the delivery of the applicant’s correspondence and thanking them for their intervention.

56. In June 2006 the applicant’s mother complained on the applicant’s behalf of deterioration in his health.

57. On 11 July 2006 the applicant lodged a declaration with the colony governor, according to which he had developed skin and liver problems in spring 2006, but stating that he was now satisfied with the treatment he was receiving and had no further requests in this respect or complaints against colony medical staff.

3. Transit from Sokyriany to Torez Colony

58. In summer 2006 the applicant was transferred to Torez no. 28 Correctional Colony in the Donetsk Region (“Torez Colony”), which operated under a lower-security regime, to continue serving his sentence.

59. Having left Sokyriany Colony on 18 July, the applicant arrived in the Torez Colony in September 2006.

60. According to the applicant, the conditions of his transport were incompatible with his state of health and with human dignity. Long distances were covered in prison trains and shorter ones in prison vans. The transit took several months because he was made to join various groups of prisoners making various shorter connections. The prison train carriages had compartments designed for four to six passengers, which were occupied by eleven or more detainees and their belongings. The overcrowded compartments were not ventilated and in the summer heat (above 30 degrees Celsius) the metal carriages overheated, making it hard to breathe. Reaching a destination took very long time, as upon arrival at an intermediate stop the cars often waited for hours for additional prisoners to be brought to the station or for a new locomotive to be connected to the train. A distance that would be covered in four hours in a regular train could take twenty-four hours or more. The guards escorted the detainees to the bathroom only once every four hours and there was no opportunity to go otherwise. The conditions of transport in the vans were also very uncomfortable. The vans had no windows and largely no ventilation. On many occasions they also took long stops and became overheated in the summer sun, aggravating the symptoms of the applicant’s heart and vascular problems and causing him to suffer intolerably.

61. The applicant further maintained that the physical conditions in the detention facilities which accommodated him as a detainee in transit between various train and van rides were likewise not suitable for habitation. For instance, the cell in Lviv SIZO had a window facing the inner corridor with no access to natural light. Cell no. 1607 in Donetsk SIZO was located in the basement. It was damp with water dripping from the ceiling and walls covered in mould. Both facilities were heavily overcrowded, with detainees taking turns to sleep, were poorly lit, ventilated and infested with insects. The sanitary facilities in them were not separated from the living quarters.

62. In addition to the poor physical conditions of detention and transport, the detainees in transit were also subjected to cruel and arbitrary practices by the convoy officers and prison guards. In particular, upon arrival and before departure they often had to spend an hour or so in overcrowded holding areas sitting in squat positions with their hands behind their heads. Guards also often made detainees assume a squat or other unnatural positions when moving somewhere, shouted, insulted, pushed and beat the prisoners, and performed unnecessary and degrading searches. The status of a prisoner in transit not having been sufficiently addressed in law and regulations, the administrative practice was not to provide them with bedding, not to segregate inmates sick with contagious diseases, and deny appropriate medical assistance or any communication with the outside world, including correspondence and visits.

63. According to the Government, the travel journals containing the particulars of the conditions of the applicant’s transit had been destroyed. However, they asserted that the conditions of the applicant’s transport and detention in transit points had been reasonably adapted to meeting his needs. Prison train carriages were designed to accommodate up to eighty people. They contained large compartments measuring three and a half square metres designed to accommodate twelve people and smaller compartments of two and a half square metres designed to accommodate five people. It was permissible to put sixteen and six people in large and smaller compartments respectively during trips that took less than four hours. All train cars were supplied with artificial ventilation and it was also possible to open a window. Prison vans measured eight square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones designed for ten passengers each and one small compartment for two passengers). The vans had no windows, but they were equipped with vents and benches for sitting on.

64. Upon the applicant’s arrival at Torez Colony in September 2006, his medical file was found to be missing.

65. On 29 September 2006 the applicant’s mother complained to the Sokyriany District Prosecutor’s Office concerning the Sokyriany Colony’s administration’s decision to allow the applicant’s transfer in the summer heat and its failure to include his medical file in his travel documents.

66. On 1 November 2006 the prosecutor’s office notified the applicant’s mother that according to Sokyriany Colony’s records, the applicant’s medical file had been properly handed over to the convoy officers escorting him out of the colony.

II. RELEVANT DOMESTIC LAW

67. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

68. The relevant provisions of the Pre-Trial Detention Act of 1993 concerning the conditions of detention of remand prisoners can be found in the Court’s judgment in the case of Tymoshenko v. Ukraine (no. 49872/11, §§ 179-180, 30 April 2013).

69. The relevant provisions of Order no. 192 of the State Department of Ukraine for the Enforcement of Sentences of 20 September 2000 “On the adoption of regulations concerning the detention and conduct of persons held in custody and convicted persons in the pre-trial detention facilities of the State Department of Ukraine for the Enforcement of Sentences” (repealed as of 18 March 2013), as worded at the material time, read as follows:

1.3. Occupancy of pre-trial detention facilities

“...

1.3.2. The actual number of detained and convicted persons [held in a facility] may not exceed the number of individual sleeping places in accordance with the health and safety regulations established by applicable law.”

8.2. Catering for persons in custody and convicted persons

“...Persons remanded in custody and convicted persons shall be provided with three meals a day and shall take their meals, as a rule, in their cells. ...

Catering for detainees during their time in court premises shall be arranged by the administration of the pre-trial detention facility in accordance with the following rules:

8.2.1. where the court proceedings last less than three days, lunch should be replaced with a packed lunch.

8.2.2. where the proceedings last more than three days without a break, three meals per day shall be provided, with lunch being delivered to the court. Where there is a break exceeding one day in the court proceedings, the calculation of the duration of the court proceedings shall restart.”

III. RELEVANT INTERNATIONAL MATERIAL

A. Conditions of detention

70. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 October 2005 read as follows:

“110. ... the CPT reiterates the comments...namely:

...

- all in-cell toilets should be fully partitioned;

...”

“recommendations:

the norms fixed by legislation for living space per prisoner to be reviewed as soon as possible, in order to ensure that these are at least 4 m² in all the establishments under the authority of the Department for the Execution of Sentences (SIZOs included) (paragraph 94);

...”

B. Conditions of transportation of detainees

71. The relevant extracts from the Report of the CPT on a visit to Ukraine from 8 to 24 February 1998 read as follows (original emphasis):

“189. During its visit to the Kyiv SIZO of the Security Service of Ukraine, the delegation also had the opportunity to examine a prison van. This vehicle contained three compartments with benches. The artificial lighting was very poor and the ventilation was non-existent. In addition, one of the compartments was extremely small (0.50m²). According to the staff in charge of the vehicle, this type of van was used only for short journeys within the city. However, the delegation heard allegations from prisoners that vehicles of this kind were sometimes used for longer journeys.

The CPT would like to receive a copy of any regulations which might exist concerning the characteristics of vehicles used for transporting prisoners. In addition, it recommends that the Ukrainian authorities check the lighting and ventilation in prison vans, and cease placing prisoners in compartments as small as 0.50m².”

72. The 2000 Report also contains the findings of the CPT concerning the conditions in which detainees were being transferred from one place of detention to another (original emphasis):

“129. Concerning road transport of prisoners, the delegation inspected two Internal Affairs Ministry vans in Simferopol SIZO. Each vehicle had collective compartments and an individual compartment. The individual compartments were as small as 0.5 m²; in paragraph 189 of the report on its 1998 visit, the CPT has already recommended that the practice of placing prisoners in compartments of this size cease. Conditions in the vehicle were also similar in other respects to those described in the aforementioned paragraph of the report on the 1998 visit (poor artificial lighting, inadequate ventilation).

130. Concerning rail transport, the delegation examined the facilities in one of the special carriages used for transporting prisoners. It had compartments measuring 2 and 3.5 m², with folding benches. The authorised capacity in the smaller compartments was six persons for journeys lasting not more than four hours, and four persons for longer journeys. In the larger 3.5 m² compartments, up to sixteen persons could be accommodated for short distances and twelve for long distances. The compartments had some access to natural light; however, ventilation was poor. The toilets for prisoners were in a disgusting state, clogged with excrement, despite the fact that prisoners were due to board a few minutes later for a long journey.

There were no arrangements to provide prisoners with food, even over long distances; as for drinking water, only a small container was provided to supply the prisoners throughout the journey.

131. The manner in which prisoners are transported, particularly by train, is unacceptable, having regard, inter alia, to the material conditions and possible duration of travel.

The CPT recommends that conditions of prisoners’ transport in Ukraine be reviewed in the light of the foregoing remarks. As an immediate measure, it recommends that the Ukrainian authorities take steps to:

- significantly reduce the maximum number of prisoners per compartment in a railway carriage: 3.5 m² compartments should never contain more than six persons, and 2 m² compartments never more than three persons;

- ensure that during rail transport, prisoners are supplied with drinking water and that for long journeys, the necessary arrangements are made for them to be properly fed;

- no longer use 0.5 m² compartments in vans for transporting prisoners.”

73. In its Report to the Ukrainian Government on the visit to Ukraine carried out from 24 November to 6 December 2002 the CPT stated as follows (original emphasis):

“142. In its report on the 2000 visit (paragraph 131), the CPT made a number of recommendations concerning the transport of prisoners by road and rail. The matter was raised again in 2002 with the Ukrainian authorities, who stated that a working group had been set up to transfer responsibility for escorting prisoners from the Ministry of Internal Affairs to the Department for the Execution of Sentences. In the light of the critical findings again made by the delegation which carried out the 2002 visit, concerning transport vans, the CPT recommends that the Ukrainian authorities give a high priority to resolving the issue of the conditions under which prisoners are transported, with due regard to the recommendations in paragraph 131 of its report on the 2000 visit.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

74. The applicant complained that the conditions of his detention in Odessa and Kyiv SIZOs, Sokyriany Colony and in transit therefrom to Torez Colony, including physical, sanitary and healthcare arrangements had been incompatible with human dignity and that the prison and convoy authorities had treated the detainees in inhuman and degrading manner. He referred to Article 3 of the Convention in this respect, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. Complaints relating to medical assistance in Odessa and Kyiv SIZOs

75. The Government maintained that the complaint concerning the quality of medical assistance available to the applicant in Kyiv SIZO was incompatible ratione personae with the Convention, as the applicant had not previously articulated it in any way. As regards the applicant’s complaint concerning the quality of medical assistance available to him in Odessa SIZO, it was very general. He had failed to indicate any specific occasions when he had asked for and been denied a particular medical treatment necessitated by his state of health. There was likewise no evidence that the applicant’s health had deteriorated during the time in which he had been detained in that facility. On the contrary, according to available records, the applicant’s health had been regularly monitored by the SIZO medical staff. He had also had access to civilian medical practitioners, who had given recommendations for his outpatient treatment. This aspect of the case was therefore manifestly ill-founded.

76. The applicant contested this view. He maintained that the quality of medical assistance available to him in Odessa SIZO had been insufficient for his medical conditions and that no medical assistance whatsoever had been made available to him in Kyiv SIZO.

77. The Court reiterates that it is the duty of the State to provide detained persons with the requisite medical assistance (see, for instance, Ukhan v. Ukraine, no. 30628/02, §§ 72-74, 18 December 2008, with further references). In determining whether the authorities have discharged their health-care obligations vis-à-vis a detainee in their charge, the Court’s task is to assess the quality of the medical services provided to the detainee in the light of his state of health and “the practical demands of imprisonment” and to determine whether, in the circumstances of a particular case, the healthcare standard applied was compatible with the human dignity of the detainee (see Kaverzin v. Ukraine, no. 23893/03, § 138, 15 May 2012, with further references).

78. Turning to the facts of the present case, the Court firstly notes that the applicant complained of a lack of medical assistance for his heart conditions in Kyiv SIZO in his initial submissions before the Court, as well as in his observations in response to those of the Government. This complaint can therefore not be rejected as incompatible ratione personae.

79. At the same time, the Court considers that the applicant has not complied with the duty to substantiate his complaints concerning the inadequacy of the medical assistance available to him in Odessa and Kyiv SIZOs. In this regard the Court notes that, according to available records, the applicant received some treatment in Odessa SIZO on account of his heart conditions. On several occasions he had consultations with civilian medical specialists, who made a number of recommendations. It is not apparent from the applicant’s submissions either before the Court or before the domestic authorities which, if any, particular course of treatment was necessitated by his medical conditions and was not made available to him in the SIZO (see by contrast Logvinenko v. Ukraine, no. 13448/07, §§ 68-69, 14 October 2010 and Barilo v. Ukraine, no. 9607/06, §§ 69-71, 16 May 2013). As regards Kyiv SIZO, there is no record whatever of any domestic complaints. In respect of both facilities, the applicant did not show that he had been unreasonably denied a particular medical manipulation needed or requested or that his health had deteriorated during his time in detention in either Odessa or Kyiv SIZO.

80. Regard being had to the materials on file, the Court considers that the applicant has failed to formulate an arguable claim that the medical assistance available to him in Odessa SIZO or Kyiv SIZO was incompatible with his human dignity within the meaning of Article 3 of the Convention.

81. This aspect of the case is therefore to be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3(a) and 4 of the Convention.

2. Complaints relating to the applicant’s detention in Sokyriany Colony

82. The Government submitted that the applicant’s complaints that he had not been provided with appropriate clothing and the other matters related to his detention in the Sokyriany Colony were not verifiable, as no relevant records had been preserved. They further noted that should the applicant have ever raised any related complaints, the records of the inquiries would have been preserved, as had been the case with the applicant’s mother’s complaints concerning interference with the applicant’s correspondence and various other matters. The applicant’s complaints were therefore unsubstantiated and in any event fell to be rejected for non-exhaustion of domestic remedies.

83. The applicant maintained that the matters complained of were of a structural nature and had not required him to exhaust domestic remedies. In any event, he had duly raised related complaints, but they had not generated a favourable outcome. In addition, his mother had lodged numerous complaints on his behalf, but the investigations into them had been perfunctory.

84. The Court observes that the matters complained of by the applicant in respect of his detention in Sokyriany Colony related to purportedly poor heating in some accommodation, inappropriate clothing arrangements, special supervision, irregularities in the processing of correspondence and delivery of newspapers, and insufficient medical assistance (see paragraphs 51 and 56 above). As can be seen from the case file, the applicant’s mother raised some of these complaints on the applicant’s behalf (i.e. concerning correspondence, heating, and medical assistance) before the domestic authorities and, following these complaints, some improvements were made (see paragraphs 55 and 57 above). Based on the case file, it does not appear that the applicant’s suffering in connection with the matters reflected in his mother’s complaints reached the threshold required by Article 3 of the Convention.

85. As regards his other complaints (in particular, inappropriate clothing and special supervision), there is no evidence that they were ever raised before the domestic authorities in any form. The Court considers that the matters at the heart of these complaints were specific to the applicant. Lacking any evidence that they were raised before the domestic authorities and not having the benefit of their findings in relation thereto, the Court, mindful of its subsidiary role under the Convention, cannot determine the reliability of the applicant’s contentions (see e.g. Vinokurov v. Ukraine and Russia (dec.) no. 2937/04, 16/10/2007).

86. It follows that the present aspect of the case is manifestly ill-founded and must be rejected as inadmissible pursuant Article 35 §§ 3(a) and 4 of the Convention.

3. Other complaints relating to the applicant’s detention in Odessa and Kyiv SIZOs and in transit to Torez Colony

87. The Government did not submit any objections concerning the admissibility of the remainder of the applicant’s complaints concerning the conditions of his detention and the conduct on the part of prison and convoy officers.

88. The Court considers that insofar as the applicant’s complaints relate to specific actions by prison and other officers vis-à-vis the detainees (searches, beatings, rude remarks, and so on), his submissions are general and lack references to dates and specific details of the incidents complained of. It cannot be discerned from the case file that the matters complained of were of a structural nature and the practices in question were endorsed or deliberately tolerated by competent authorities in the domestic penal system. The Court therefore considers that absent more specific information concerning these incidents and concerning the applicant’s attempts to bring the matters to the attention of the domestic authorities, it is not in a position to establish the relevant facts and examine the reliability of the applicant’s allegations. These submissions should therefore be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

89. As regards the applicant’s complaints concerning the physical conditions of his detention in Odessa and Kyiv SIZOs and the conditions in transit from Sokyriany to Torez, it finds that the applicant’s allegations are sufficiently specific and detailed. The relevant complaints are not manifestly ill-founded within the meaning of Article 35 §§ 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Physical conditions of detention in Odessa and Kyiv SIZOs

90. The applicant referred to his factual submissions (see paragraphs 33-35 and 48 above) and maintained that the physical conditions of his detention in Odessa and Kyiv SIZOs had been incompatible with Article 3 of the Convention. Both buildings dated from the nineteenth century and needed complete renovation. Both had been severely overcrowded, poorly lit and ventilated and had lacked proper sanitary facilities.

91. The Government referred to their factual submissions (see paragraphs 37-38 and 49 above) and argued that both SIZOs had offered conditions reasonably adapted to the applicant’s basic needs.

92. The Court reiterates that Article 3 of the Convention binds the States to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the detention measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see for example Visloguzov v. Ukraine, no. 32362/02, §§ 56 and 57, 20 May 2010, with further references). Where a matter complained of, being clearly and consistently expressed by an applicant, is of such a nature that only the respondent Government have access to documents capable of corroborating or refuting the relevant allegations, failure on their part to submit convincing and rigorous evidence may give rise to the drawing of inferences as to the validity of the applicant’s allegations (see Gubin v. Russia, no. 8217/04, § 56, 17 June 2010; Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005-X (extracts)); and Titarenko, cited above, § 55).

93. The Court next notes that the parties’ accounts differ in respect of various details of the conditions of the applicant’s detention in Odessa and Kyiv SIZOs (namely with regard to the personal space available per inmate, the number and health status of inmates in various cells, the adequacy of ventilation, lighting, and sanitary arrangements, and so on) and neither position is supported by sufficient evidence. The relevant facts therefore cannot be proved “beyond reasonable doubt”, which is the standard of proof usually applied by the Court (see Starokadomskiy v. Russia, no. 42239/02, § 39, 31 July 2008). However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation made by the applicant.

94. The Court notes that even if it restricts its analysis to the data submitted by the Government, it appears that during his detention in both Odessa and Kyiv SIZOs, the applicant was subjected to a severe lack of personal space (see, for example, Orchowski v. Poland, no. 17885/04, §§ 131 and 134, 22 October 2009 and Znaykin v. Ukraine, no. 37538/05, §§ 49 and 50, 7 October 2010). In particular, as is clear from the figures provided by the Government (see paragraphs 37 and 49 above) and assuming that, contrary to the applicant’s submissions, the cells were not overpopulated, in both facilities the cells afforded some two square metres of floor space per inmate. This space is far below than the minimum standard of four square metres per inmate recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment for multiple occupancy cells (see paragraph 70 above).

95. Moreover, the Court is mindful of the fact that the cells also contained sanitary facilities, furniture and fittings, which must have further reduced the floor area available to the applicant as personal space. It also notes that based on the case-file materials concerning the SIZO regime, the applicant and his fellow inmates had no freedom of movement and were confined to their cells for most of the day. The Court next notes that the applicant was detained in such conditions for a considerable period of time, in particular, from March 2003 until November 2005 (some two-and-a-half years in Odessa SIZO and one-and-a-half months in Kyiv SIZO). In the light of its jurisprudence (see for example Melnik v. Ukraine, cited above, § 103 and Iglin v. Ukraine, no. 39908/05, §§ 51-52, 12 January 2012), the Court finds that the lack of personal space afforded to the applicant in Odessa and Kyiv SIZOs in and of itself raises an issue under Article 3 of the Convention.

96. The Court next notes that the Government have not disputed that the sanitary facilities in the cells in which the applicant was accommodated were not separated from the living quarters and that their submissions concerning the adequacy of other conditions (such as ventilation, lighting and sanitary arrangements) in Odessa and Kyiv SIZOs were couched in general terms and not supported by evidence. The Court is therefore prepared to conclude that the applicant’s suffering on account of lack of personal space was, at least to a certain extent, aggravated by the other factors at issue. Consequently, it finds that the conditions of the applicant’s detention in Odessa and Kyiv SIZOs qualified as “inhuman or degrading” within the meaning of Article 3 of the Convention.

97. There has therefore been a violation of Article 3 of the Convention in this respect.

2. The conditions of the applicant’s transit from Sokyriany to Torez

98. The applicant referred to his factual submissions (see paragraphs 60-62 above) and maintained that the conditions in which he had been transported and detained between July and September 2006 while in transit from Sokyriany Colony to Torez Colony had been incompatible with Article 3 of the Convention.

99. The Government referred to their factual submissions (see paragraph 63 above) and submitted that the conditions of the applicant’s transit had been adequate.

100. The Court notes that, insofar as the applicant’s complaints relate to the conditions of his transportation by rail and in prison vans, he did not specify the exact dates and the duration of his travel between the various transit points. At the same time, based on the materials on file, the conditions complained of appear to have been similar to those which were sharply criticised by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during its visits to Ukraine (see paragraphs 71-73 above). Similar factual submissions also gave rise to the finding of a violation of Article 3 of the Convention in the Court’s judgment in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 105-113, 25 October 2007). The Court does not find any reason to take a different approach in the present case and considers that the conditions of the applicant’s transport were in breach of Article 3 of the Convention.

101. As regards the physical conditions of detention in the transit points, the Court notes that the applicant only provided a description of such conditions in respect of Lviv and Donetsk SIZOs. He did not indicate the periods of his detention in these facilities or the names of other facilities and the periods of his detention in them, if there were any. At the same time, his submissions concerning the physical conditions of detention in Lviv and Donetsk SIZOs (namely concerning a lack of personal space, poor ventilation, lighting, sanitary facilities, and so on) are sufficiently detailed and specific. Lacking any countervailing evidence from the Government, the Court considers that, regardless of the duration of the applicant’s detention in these facilities, the conditions of his detention therein caused him suffering reaching the threshold proscribed by Article 3 of the Convention.

102. The Court further observes that the applicant was in transit from Sokyriany Colony to Torez Colony between July and September 2006 (in other words some two months). Regard being had to the total length of this period spent either in prison vans, trains or transit points, at least two of which offered conditions of detention proscribed by Article 3, the Court considers that the conditions of the applicant’s transit amounted to inhuman and degrading treatment.

103. There has therefore been a breach of Article 3 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

104. The applicant next complained that his trial had been unfair, in particular, in view of the insufficient time that he had had to study the case-file materials, the fact that had been mentally and physically exhausted during the hearings and because he had not been sufficiently represented. He relied upon Article 6 §§ 1 and 3 (b) and (c) of the Convention, which, insofar as relevant, read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

105. The Court reiterates that the requirements of paragraph 3 of Article 6 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 of that Article and are thus to be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I). On the whole, the Court is called upon to examine whether the proceedings in their entirety were fair (see Balliu v. Albania, no. 74727/01, § 25, 16 June 2005).

A. Allegations of insufficient time in which to study the case file

106. The Government alleged that the applicant’s complaint that he had had insufficient time in which to study the case file was manifestly ill-founded. In particular, by 24 July 2003 the applicant had studied the entire case file, as was evidenced by the affidavit signed by him and A.K., his lawyer. Neither he nor his lawyer had lodged any requests for additional time before the beginning of the trial. Requests in that regard lodged by three of the applicant’s co-defendants had been granted. The refusal by the trial court to allow the applicant’s belated and unsubstantiated request to review the case file had been justified by the need to respect the other parties’ right to a speedy trial. Furthermore, the applicant had been given further time to study the case file and the trial records when preparing his cassation appeal.

107. The applicant disagreed. He noted that the time allotted to him for studying the case file before the trial had been grossly insufficient, as the file had consisted of forty-four volumes of some 200 pages each. His request for additional time to study the case file had been rejected arbitrarily, particularly so given that his new lawyer, O.K., had been granted such time on the same date.

108. The Court reiterates that in accordance with Article 6 § 3 (b) the accused must have the opportunity to organise his defence in an appropriate way and without restriction on the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see for example Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005). This obligation includes providing the accused with an opportunity to acquaint himself with the results of investigations carried out throughout the proceedings for the purpose of preparing his defence (see for example C.G.P. v. the Netherlands, (dec.), no. 29835/96, 15 January 1997; Foucher v. France, 18 March 1997, §§ 26-38, Reports 1997-II; and Iglin v. Ukraine, cited above, § 65). At the same time, the Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of the Convention. The Court’s task is not to substitute itself for the domestic authorities in managing their proceedings, but to consider whether the method chosen by them has led in a given case to results which are compatible with the Convention (see for established authority Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252).

109. At the same time, the Court observes that according to the affidavit signed by the applicant on 24 July 2003, he had finished studying the case file by that date. It also appears that the applicant, who was represented at the material time by A.K., his chosen lawyer, had ample opportunities to request further time - either before the commencement of the court proceedings or at the preparatory hearing. Similar requests by his co-defendants were granted during that time. It is further notable that neither in his application to the Regional Court, nor in his cassation appeal lodged with the Supreme Court, did the applicant indicate which materials in the case file, which concerned various episodes of criminal activity by eleven defendants, he had needed to review further and in which way his ability to defend himself was prejudiced by his inability to obtain additional time to review these materials in the original form. Likewise, in his submissions before the Court, the applicant did not expound on this issue and referred exclusively to the fact that the case file was comprised of many volumes. In these circumstances it is not for the Court to decide in abstracto how much time is necessary to study a case file of a given volume.

110. In light of the above considerations and regard being had to the level of detail in the applicant’s submissions, the Court considers that they do not raise an arguable claim concerning a breach of the applicant’s right to have adequate time in which to prepare his defence.

111. This part of the application is therefore to be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3(a) and 4 of the Convention.

B. Allegations concerning mental and physical exhaustion during the hearings

112. The Government further argued that the applicant’s allegations concerning his mental and physical exhaustion during the trial proceedings in view of the conditions of his detention, transport and the related catering arrangements were also manifestly ill-founded. They referred to their factual account (see paragraph 39 above) and noted that there was no medical or other evidence indicating that the applicant had lacked the mental or physical capacity to participate in the trial. On the contrary, as followed from the trial transcripts, the applicant, who had benefitted from legal representation during the trial, had also taken a very active personal part in the hearings. In particular, he had lodged numerous procedural requests, expressed opinions and actively questioned his co-defendants and witnesses.

113. The applicant contested this view. He referred to his factual submissions (see paragraph 35 above) and maintained that his ability to effectively participate in his trial had been severely impeded by the conditions of his detention, including inadequate medical assistance for his heart problems, long waiting periods before and after his transportation to the court premises and irregularity of catering arrangements on court days.

114. The Court reiterates that the States’ duty under Article 6 § 3 (b) to ensure the accused’s right to mount a defence in criminal proceedings includes an obligation to organise the proceedings in such a way so as not to prejudice his power to concentrate and apply mental dexterity in defending his position (see Makhfi v. France, no. 59335/00, §§ 40-41, 19 October 2004). Where the defendants are detained, the conditions of their detention, transport, catering and other similar arrangements are the relevant factors to consider in this respect (see, for example, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 71 and 89, Series A no. 146; Mayzit v. Russia, cited above, § 81; and Moiseyev v. Russia, no. 62936/00, § 222, 9 October 2008).

115. Examining the facts of the present case in light of the principles developed in the Court’s jurisprudence, the Court notes that as appears from available materials, the applicant referred to several problems with his transportation to and from court in his submissions before the trial and cassation instance courts (see paragraphs 36 and 42 above). However, his submissions did not refer to a structural problem, but rather concerned specific incidents, which purportedly took place on particular dates. Moreover, the applicant’s submissions before the Regional Court in this respect were not the same as his submissions before the Supreme Court and different yet again from his factual allegations made in the Convention proceedings. For instance, the applicant submitted before the Court that he had routinely been taken to the transit box at around 6 a.m. (see paragraph 35 above). Meanwhile, as appears from an unofficial transcript of the hearings on file, in the domestic proceedings he mentioned a single incident of a being taken prematurely to the transit box, which was at 8 a.m. (see paragraph 36 above). As is clear from the text of the cassation appeal on file, this matter was not raised in the cassation proceedings whatsoever (see paragraph 42 above).

116. The Court also notes that there is no medical or other evidence that the applicant’s ability to concentrate on his defence during the trial was prejudiced by the physical conditions or healthcare arrangements in the Odessa SIZO. On the contrary, in March 2004 the applicant was examined by a panel of medical professionals independent of the penal system, which expressly confirmed that his state of health was not incompatible with detention or with taking part in the trial. Finally, although the Court has earlier found that the conditions of the applicant’s detention at the material time were degrading, referring primarily to the apparent lack of personal space, it has neither been shown, nor argued in the domestic proceedings that the applicant was deprived of sleep before the hearings or that his living conditions mentally exhausted him to the point that he could not concentrate on his defence during the trial.

117. The Court reiterates that to raise an issue, a complaint concerning the incompatibility of detention conditions or other arrangements with the applicant’s ability to defend himself effectively in court, as any other Convention complaint, must be clearly formulated, substantiated with factual evidence as far as possible, and properly brought to the attention of the competent domestic authorities before having been raised in Convention proceedings (see Mayzit v. Russia, cited above, § 82). Regard being had to the Court’s subsidiary role, it cannot act as a first-instance tribunal in establishing the relevant facts (see Vasiliy Ivashchenko v. Ukraine, no. 760/03, § 88, 26 July 2012).

118. Regard being had to the materials on file and the above considerations, the Court finds that the applicant’s submissions are neither sufficiently detailed nor supported by the necessary factual evidence, including the findings of the authorities involved, to give rise to an arguable issue under Article 6.

119. It follows that this aspect of the case should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Allegations concerning the breach of right to have a defence representative

120. The Government argued that the applicant’s complaint concerning the breach of his right to have a defence representative was manifestly ill-founded. In particular, in the beginning of the investigation the applicant had been properly informed of his procedural rights and provided with a legal-aid lawyer, whose representation he had deliberately and unequivocally terminated. Furthermore, throughout the proceedings the applicant’s requests to have a privately-funded lawyer admitted or a legal-aid lawyer appointed had always been promptly accommodated. The applicant had been legally represented throughout the trial. Insofar as he had remained unrepresented during some activities in the course of the pre-trial investigation stage, this had been his deliberate choice. Moreover, no incriminating evidence had ever been obtained during these periods. His defence strategy had remained the same regardless of whether or not he had been legally represented during a particular stage of the proceedings. As the applicant’s father was not a lawyer, the Regional Court’s refusal to appoint him as the applicant’s lay defender had not fallen within the ambit of Article 6 § 3 (c). In any event, this refusal had been justified by the interests of justice, since the applicant’s father had been summoned as a witness in the same proceedings and his appointment as the applicant’s representative would have generated a conflict of interest.

121. The applicant contested this view. He argued that taking into account the complexity of the case and the gravity of the charges against him, the interests of justice had obliged the State authorities to appoint a lawyer for him immediately upon his arrest, notwithstanding his own position in this respect. In any event, his waiver of the right to legal assistance given before the first interrogation had neither been genuine nor unequivocal, as it had resulted from ill-treatment and coercion. Moreover, there had not been a transparent procedure in place for the selection and appointment of legal-aid lawyers by the investigative authority, so he had reasonably feared that any lawyer appointed to represent him at that stage would act contrary to his interests. The applicant also argued that refusal of the Regional Court to appoint his father as his lay defender had been arbitrary and unfair, particularly as O.K., his legal counsel, had performed poorly and had missed some hearings. As the applicant’s family had encountered financial difficulties and had not been able to afford an expensive lawyer, the appointment of the applicant’s father as his representative would have helped redress the deficiencies in his legal representation. The summoning of the applicant’s father as a witness had not been necessary and had been done on purpose to prevent him from representing the applicant.

122. The Court notes that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). As a rule, access to a lawyer should be provided from the first questioning of a suspect by the investigative authority, unless it can be demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). The very fact of unjustified restriction of access of a detained suspect to a lawyer may prejudice the rights of the defence, even where no incriminating statements were obtained as a result (see for example Dayanan v. Turkey, no. 7377/03, §§ 32-33, 13 October 2009). At the same time, neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as long as a waiver of the right is given in an unequivocal manner and was attended by minimum safeguards commensurate to its importance (see Salduz v. Turkey, cited above, § 59, and Paskal v. Ukraine, no. 24652/04, § 76, 15 September 2011).

123. The Court also notes that when appointing a defence lawyer, the national authorities must have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237-B, and Mayzit v. Russia, cited above, § 66). The mere appointment of a legal-aid lawyer does not in itself settle the issue of compliance with the requirements of Article 6 § 3 (c), and the competent national authorities may be required under Article 6 § 3 (c) to intervene if a failure by a legal-aid lawyer to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168; Daud v. Portugal, 21 April 1998, § 38, Reports 1998-II; and Iglin, cited above, § 67). In other situations, regard being had to the independence of the legal profession from the State, the conduct of the defence is essentially a matter between the defendant and his counsel, whether that lawyer is appointed under a legal-aid scheme or privately financed (see Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002, and Iglin v. Ukraine, ibid.).

124. Turning to the facts of the present case, the Court notes that based on the case-file materials, the applicant was provided with a legal-aid lawyer before the first interrogation and his further requests for legal-aid lawyers to be appointed or for privately-funded lawyers to be admitted to the proceedings were always accommodated without delay. It is true that during certain questioning sessions and confrontations at the pre-trial investigation stage, including the first questioning of 16 December 2002, the applicant was not legally represented. In examining whether the absence of legal representation during these activities was compatible with Article 6, the Court notes that before each such questioning session or confrontation the applicant was notified in writing of his right to legal assistance, he waived this right and expressed his consent to take part in the activity in question. There is nothing in the case file to suggest that the applicant’s waivers of legal assistance at these times were misinformed or obtained as a result of ill-treatment or coercion. On the contrary, as is evident from the record of the applicant’s interrogation on 25 December 2002, the applicant, questioned in the presence of A.A., his privately-funded lawyer, expressly denied that he had been ill-treated upon his arrest. It is also notable that during the questioning sessions and confrontations which took place without a lawyer, the applicant either refused to make any statements or denied the charges against him. It follows that no incriminating evidence was obtained from the applicant in absence of a lawyer. The Court next observes that during the periods in which the applicant benefited from legal assistance of his choosing, he likewise either chose to remain silent or reiterated his innocence.

125. The Court also observes that the applicant never argued at the domestic level that the legal-aid lawyers selected to represent him by the authorities had been biased against him. It is therefore not for the Court to look into these allegations, raised for the first time in the Convention proceedings, or to review the domestic system of appointment of legal-aid lawyers in abstracto. Finally, the Court observes that following the applicant’s complaints regarding the performance of his court-appointed lawyer O.K., she was replaced with another legal-aid lawyer, whom the applicant later chose to replace with O.K. as his privately hired lawyer.

126. Regard being had to the applicant’s procedural conduct and to the authorities’ flexibility in accommodating his requests for the appointment, replacement or termination of lawyers, the Court considers that there is no basis in the present case to hold the State responsible for the purported deficiencies in the applicant’s legal representation.

127. Insofar as the applicant complained of the refusal of the Regional Court to appoint his father, who was not a lawyer, as his lay defender, the Court notes that in the case of Shabelnik v. Ukraine (no. 16404/03, § 39, 19 February 2009) it has already found that the ability to be represented by relatives provided by domestic law was complementary to the right to legal assistance and did not as such attract the protection of Article 6 § 3 (c) of the Convention. Viewing the present complaint in the context of the more general right to mount one’s defence, the Court notes that a variety of alternative options were made available to the applicant. In these circumstances, there is no appearance that the Regional Court’s refusal to accept the appointment of the applicant’s father on the grounds that he had been summoned as a witness in the same proceedings made it impossible for the applicant to mount a defence.

128. Regard being had to all the above considerations, it follows that the applicant’s submissions concerning a breach of his right to have a defence representative do not raise an arguable claim within the meaning of Article 6 §§ 1 and 3 (c) of the Convention.

129. This aspect of the case must therefore be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

130. The applicant also alleged that he had not had at his disposal an effective domestic remedy for his complaints under Article 3 concerning the conditions of his detention and the standard of medical assistance available to him in Odessa and Kyiv SIZOs, Sokyriany Colony and during his transit to Torez Colony, as required by Article 13 of the Convention. This provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

131. The Government argued that the applicant’s submissions did not give rise to an arguable claim.

132. The applicant disagreed.

133. The Court refers to its findings in paragraph 89 above and observes that the applicant has made out arguable claims under Article 3 concerning the adequacy of the physical conditions of his detention in Odessa and Kyiv SIZOs and in transit to Torez Colony. It finds, therefore, that his complaint under Article 13 of a lack of effective remedies for the above complaints must be declared admissible.

134. As regards the remainder of the claim, it must be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

135. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik v. Ukraine, cited above, §§ 113-116, and Ukhan, cited above, §§ 91-92) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant had in practice an opportunity to obtain effective remedies for his complaints, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant any other appropriate redress.

136. The Court concludes, therefore, that there has been a violation of Article 13 in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention in Odessa and Kyiv SIZOs and in transit to Torez Colony.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

137. The Court notes that on various dates the applicant lodged a number of other complaints under Articles 2, 3, 5, 6, 8, 9, 10, 13, 14 and 34 of the Convention with respect to the facts of the present case.

138. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

139. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

140. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

141. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

142. The Government alleged that this claim was exorbitant and unsubstantiated.

143. The Court recalls that it has found breaches of the Convention on account of the conditions of the applicant’s detention in Odessa and Kyiv SIZOs, in transit to Torez Colony and on account of the lack of domestic remedies for the above complaints. Ruling on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

144. The applicant also claimed 4,045.60 Russian roubles (RUB) for postal expenses and RUB 33,000 in legal fees on his behalf and on behalf of his three co-defendants in the criminal proceedings (Messrs B. Zinchenko, I. Romanov and I. Danilov), who had also lodged applications with the Court and had initially been represented by Mr V. Chernikov and subsequently by Mr V. Komarov, lawyers practicing in Moscow. By way of justification of the postal expenses, the applicant presented postal receipts. One of these receipts indicated that the payment had been made by Mr G. Zhuravlev, several others that the payments had been made by Mr V. Komarov, and the remaining receipts did not indicate the payer.

145. By way of justification of the legal fees, the applicant presented a copy of the first page of a contract for legal services of 20 January 2009 concluded between the lawyer Mr V. Komarov and an individual, Mrs G., for representation of the applicant and his co-defendants listed above in exchange for consideration of RUB 30,000, excluding expenses which were also to be paid by Mrs G. In addition, the applicant also maintained that RUB 3,000 had been paid to lawyer Mr G. Zhuravlev in connection with gathering evidence concerning Mr I. Danilov’s state of health.

146. The Government submitted that they would leave it to the Court’s discretion to decide on the postal expenses. As regards legal fees, they challenged the validity of the contract concluded by Mrs G. on the applicant’s and his co-defendants’ behalf. In particular, they noted that only the first page of the contract, which contained no signatures, had been provided. Moreover, no power of attorney or any other document authorising Mrs G. to conclude a contract for the applicant’s or his co-defendants’ legal representation had been submitted. They also noted that the relevant documents were insufficiently detailed and that in respect of the payment to Mr G. Zhuravlev, neither an invoice, nor any contract whatsoever had been provided.

147. The Court observes that, based on the documents provided, it is not apparent that the applicant has borne any legal fees, postal or other expenses in connection with the present application or that he has an outstanding obligation in this regard to Mr Komarov, Mrs G. or any other individual or entity. It further notes that, according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court is unable to determine the amount of fees and expenses paid or owed by the applicant. It therefore makes no award.

C. Default interest

148. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the conditions of detention in Odessa and Kyiv SIZOs and in transit from Sokyriany Colony to Torez Colony and the lack of effective remedies with respect to the above complaints admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in Odessa and Kyiv SIZOs and in transit from Sokyriany Colony to Torez Colony;

3. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ANDREY YAKOVENKO v. UKRAINE - 63727/11 - Chamber Judgment [2014] ECHR 271 (13 March 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/271.html Cite as: [2014] ECHR 271