DEMIDETSKIY and 9 other applications v. UKRAINE

Communicated on 7 December 2016

FIFTH SECTION

Application no. 50829/09
Leonid Vladimirovich DEMIDETSKIY
against Ukraine

and 9 other applications

(see list appended)
lodged on 27 August 2009

STATEMENT OF FACTS

1. Application no. 50829/09

Leonid Vladimirovich DEMIDETSKIY v. Ukraine

Introduced on 27 August 2009

The applicant, Mr Leonid Vladimirovich Demidetskiy, was born in 1979 and is currently serving his sentence in Ukraine.

On 31 July 2005 the applicant was arrested by the police on suspicion of murder and theft and was taken to a police station, where he was detained until 2 August 2005. At the police station the applicant was allegedly beaten and subjected to various forms of ill-treatment in an attempt to force him to confess to having committed the crimes of which he was suspected. The applicant was given no access to a lawyer. As a result of his ill-treatment, the applicant suffered a number of injuries, mainly haematomas, which were recorded in medical reports dated 2 August and 22 October 2005. Allegedly, he gave self-incriminating statements to the police.

The applicant complained of his ill-treatment to the prosecutor’s office. After the applicant’s complaint was reconsidered a number of times, on 29 January 2010 the prosecutor’s office rejected it as unsubstantiated. On 3 August 2011 a higher prosecutor annulled that decision and ordered that the matter be reconsidered; the outcome of that reconsideration is unknown.

On 2 August 2005 a lawyer was appointed to represent the applicant in the proceedings. That lawyer was present at the applicant’s subsequent questioning, during which the applicant partly acknowledged his guilt.

After the applicant’s criminal case was remitted to the investigator for additional investigation several times, on 26 December 2008 the applicant was convicted of aggravated murder and several related crimes and sentenced to life imprisonment. On 23 April 2009 the Supreme Court upheld that judgment.

On 29 July 2010 the Supreme Court, having heard extraordinary appeals by the applicant and the prosecution, quashed the previous decisions and remitted the case to the Donetsk Court of Appeal for fresh examination. The Supreme Court found that one of the judges on the panel that had heard the case at first instance should have been excluded from the proceedings on the merits.

On 11 February 2011 the Donetsk Court of Appeal found the applicant guilty of aggravated murder, theft and destruction of property and sentenced him to life imprisonment.

After his conviction on 11 February 2011, the applicant was not provided with free-of-charge legal assistance, despite his having lodged an application for such assistance.

On 26 April 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the applicant’s conviction and sentence.

The applicant’s conviction was based, in the main, on the statements of a number of witnesses and on different pieces of forensic evidence. The courts also relied on the applicant’s and his accomplice’s statements, which had been obtained during their questioning in the presence of their lawyers. The applicant’s complaint of ill-treatment was found to be unsubstantiated, In that regard, the courts relied on the findings in the decision of 29 January 2010.

COMPLAINTS

The applicant complains under Article 3 of the Convention of his ill-treatment by the police between 31 July and 2 August 2005.

The applicant complains under Article 6 § 1 of the Convention of the excessive duration of the proceedings.

The applicant further complains under Article 6 § 3 (c) and (d) of the Convention of the alleged unfairness of the proceedings in his case.

QUESTIONS TO THE PARTIES

1. Was there a breach of Article 3 of the Convention, having regard to the applicant’s complaint of ill-treatment by the police?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did the applicant have a fair hearing in the determination of the criminal charges against him? In particular, having regard to the applicant’s complaint that he was denied free-of-charge legal assistance in the proceedings in respect of his appeal against the judgment of 11 February 2011, did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

2. Application no. 56358/09

Igor Mikhaylovich KRAVTSOV v. Ukraine

Introduced on 7 September 2009

The applicant, Igor Mikhaylovich Kravtsov, was born in 1966 and lives in the Donetsk Region.

On 14 May 2008 the Snizhne Court found the applicant guilty of the intentional infliction of serious bodily injuries – the applicant had stabbed a certain G. with a knife – and sentenced the applicant to seven years’ imprisonment. On 9 September 2008 the Donetsk Court of Appeal upheld that judgment.

During the proceedings the applicant acknowledged that he had injured G., but stated that he had done so in self-defence as G. had attacked him in the applicant’s flat. The courts rejected the applicant’s self-defence argument. They found that the applicant had had a fight with G. in the applicant’s flat, but that the applicant – by way of revenge – had stabbed G. after the fight had ended. In that regard, the courts relied on the statements of G. and several other witnesses, which had been obtained at the pre-trial stage of the proceedings. The applicant requested the courts to hear G. and other witnesses in person. The courts refused, having noted that all those witnesses had left their respective last-known places of residence and could not be traced.

The applicant appealed to the Supreme Court, which delivered a decision on 27 March 2009 finding no fault on the part of the lower courts.

COMPLAINTS

The applicant complains that the courts violated Article 6 of the Convention as his conviction was based on the statements of witnesses who had not been heard in person during the trial.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him? In particular, having regard to the applicant’s complaint that his conviction was based on the statements of witnesses who had not been heard in person during the trial, did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

3. Application no. 66156/09

Yuriy Mykolayovych SHADYMOV v. Ukraine

Introduced on 7 December 2009

The applicant, Yuriy Mykolayovych Shadymov, was born in 1971 and currently lives in Ukraine.

According to the applicant, on 23 December 2005 he was arrested by the police and was taken to a police station. In the report on the applicant’s arrest it was stated that he had been arrested on 24 December 2005 after he had publicly insulted police officers and other persons (which was an administrative offence). According to the court decisions in the applicant’s case, he was arrested on 26 December 2005 on suspicion of having murdered his father’s neighbour on 21 December 2005.

While at the police station, the applicant was questioned concerning the murder. He initially denied having committed the murder, so police officers allegedly beat him in an attempt to force him to confess to it. As a result of that ill-treatment, the applicant suffered a number of injuries, the most serious being a broken rib, which was noted in a medical report of 30 December 2005.

Eventually, during his questioning on 27 and 28 December 2005 in the presence of the lawyer who had been assigned to him by the investigator, the applicant gave self-incriminating statements. The investigator disregarded a request to be permitted to meet with the applicant lodged on 27 December 2005 by the lawyer whom the applicant’s relatives had hired for him.

On 28 December 2005 that lawyer was allowed to meet with the applicant. When questioned in the presence of that lawyer, the applicant retracted his previous self-incriminating statements and stated that he was not guilty of the murder in question. That lawyer continued to represent the applicant during the proceedings.

The applicant complained of his ill-treatment to the prosecutor’s office. The prosecutor’s office ordered an additional medical examination of the applicant. In his report of 14 February 2007 the medical expert who conducted the examination concluded that the applicant’s rib had been broken at least two weeks before his examination on 30 December 2005. On 19 February 2007 the prosecutor’s office rejected the applicant’s complaint as unsubstantiated.

On 25 January 2008 the Katerynopillya Court found the applicant guilty of murder and sentenced him to ten years’ imprisonment.

On 19 August 2008 the Cherkasy Court of Appeal upheld that judgment.

On 23 June 2009 the Supreme Court, having heard the case in private, rejected as unsubstantiated an appeal on points of law by the applicant.

The applicant’s conviction was based, in the main, on his self‑incriminating statements of 27-28 December 2005, statements by a number of witnesses, different pieces of forensic evidence and the fact that objects previously belonging to the victim had been found in the applicant’s residence.

Having heard several police officers, the investigator, the prosecutor’s office and the lawyer who had been in contact with the applicant between 23 and 28 December 2005, the courts found that the applicant’s allegation of ill-treatment by the police was unfounded. In that regard, the courts also relied on the medical expert’s report of 14 February 2007 and the prosecutor’s decision of 19 February 2007. The courts considered that statements by several witnesses that they had seen or heard the applicant being beaten while he had been at the police station in December 2005 were not sufficiently persuasive.

According to the applicant, during the proceedings he had not been able to study all the material in his case file and the courts had refused to admit expert reports which had been prepared upon the applicant’s request; instead the courts had relied on statements made by witnesses who had not been heard in person during the trial. Allegedly, the membership of the panel of judges of the Katerynopillya Court which had tried the applicant had not been constituted in compliance with official procedure.

The applicant also states that neither he nor his lawyers took part in the hearing of 23 June 2009 as they had not been informed in advance that that hearing was to take place.

COMPLAINTS

The applicant complains under Article 3 of the Convention of his ill‑treatment by the police between 23 and 27 December 2005.

The applicant further complains under Article 6 §§ 1 and 3 of the Convention of the alleged unfairness of the proceedings in respect of his case.

QUESTIONS TO THE PARTIES

1. Was there a breach of Article 3 of the Convention, having regard to the applicant’s complaint of ill-treatment by the police?

2. Did the applicant have a fair hearing in the determination of the criminal charges against him? In particular, having regard to the applicant’s complaint concerning the use of his self-incriminating statements in securing his conviction, did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

4. Application no. 15691/10

Dmitriy Vladimirovich OLKHOVSKIY v. Ukraine

Introduced on 3 March 2010

The applicant, Dmitriy Vladimirovich Olkhovskiy, was born in 1973 and currently lives in Donske.

A. The applicant’s arrest and alleged ill-treatment on 14 August 2007

On 14 August 2007 at about 2.30 p.m. the applicant was arrested by the police (who used force against him) and was taken to a police station. At the police station the applicant was allegedly beaten and subjected to various forms of ill-treatment. At about 4.30 p.m. he was released from the police station, although the police did not return his mobile telephone, money and other belongings. On the same day, shortly after his release, the applicant was medically examined. According to the report of that examination, the applicant had several minor injuries, mainly haematomas.

In August 2007 the applicant lodged a complaint with the prosecutor’s office regarding his ill-treatment. After the applicant’s complaint was reconsidered a number of times, on 14 March 2013 the prosecutor’s office rejected it as unsubstantiated. The prosecutor’s office found no fault on the part of the police. The prosecutor’s office noted that the applicant had been arrested by the police on suspicion of robbery and that following his questioning at the police station the police had decided to bring no charges against him. On 27 May 2013 a district court annulled the decision of 14 March 2013 for failure to examine all available evidence. It was ordered that the matter be reconsidered; the outcome of that reconsideration is unknown.

In December 2008 the applicant lodged with a district court a claim against the authorities seeking compensation for his allegedly unlawful arrest, ill-treatment and deprivation of his belongings by the police. The claim was dealt with by courts at three judicial instances and was ultimately dismissed in October 2009, mainly for the reason that there had been no decision finding fault on the part of the police.

The applicant also lodged with the courts several other claims and complaints regarding the alleged events of 14 August 2007 and the authorities’ alleged failure to conduct an effective investigation, but to no avail.

B. Search on 16 February 2012

In early 2012 the Security Service launched an investigation into the possible preparation of a terrorist act. The applicant was suspected of having been involved in that act. On 7 February 2012 a judge on the Voroshylovskyy District Court issued, upon the State Security Service’s request, a search warrant in respect of the applicant’s and his mother’s respective flats. No copy of that search warrant was given to the applicant.

On 16 February 2012 officers of the Security Service searched the flats, in the applicant’s presence. They seized a number of items belonging to the applicant, including mobile telephones and other electronic appliances, as well as various documents. According to the applicant the officers also seized documents concerning his application with the Court.

The applicant was not given access to the material on which the search warrant was based.

On 1 March 2012 the applicant was questioned by one of the officers.

On 8 May 2012 the Security Service terminated the investigation because no elements of a crime had been established in respect of the applicant’s actions.

The items seized during the search were not returned to the applicant, even though he had repeatedly lodged applications and complaints with the authorities in that regard.

COMPLAINTS

The applicant complains under Article 3 of the Convention of his ill‑treatment by the police on 14 August 2007 and of the authorities’ failure to conduct an effective investigation in that regard.

Relying on Article 5 §§ 1 and 5 of the Convention the applicant complains of his allegedly unlawful arrest on 14 August 2007 and of the authorities’ refusal to compensate him in that regard.

The applicant complains under Article 1 of Protocol No. 1 that the police failed to return to him those of his belongings that were seized on 14 August 2007.

The applicant further complains of a violation of Article 8 of the Convention and Article1 of Protocol No. 1 on account of the search on 16 February 2012 and the resulting seizure of his property.

Relying on Article 13 of the Convention, the applicant claims that no effective remedy was available to him at the domestic level as regards the above complaints.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaint of ill-treatment by the police?

2. Did the authorities carry out an effective investigation into the applicant’s complaint of ill-treatment by the police, in accordance with Article 3 of the Convention?

3. Was the applicant deprived of liberty on 14 August 2007, in breach of Article 5 § 1 of the Convention?

4. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?

5. Has there been a violation of Article 8 of the Convention in the light of the applicant’s complaints regarding the search on 16 February 2012 and the seizure of his property?

6. Has there been a violation of Article 1 of Protocol No. 1 on account of the alleged failure to return his property?

7. Did the applicant have at his disposal an effective domestic remedy in respect of his complaints above under Articles 3, 5 and 8 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?

5. Application no. 17025/10

Yevgeniy Alekseyevich CHMIREV v. Ukraine

Introduced on 5 March 2010

The applicant, Mr Yevgeniy Alekseyevich Chmirev, was born in 1958 and lives in Yashchikove.

On 27 January 2006 the applicant was arrested by the police on suspicion of drug trafficking. He remained in detention for the entire duration of the ensuing proceedings. The decisions authorising the applicant’s continued detention were based mainly on the grounds that further investigative measures had to be undertaken and that the applicant was charged with serious crimes. Some of the decisions contained no reasoning or time-limit for the applicant’s continued detention. The applicant’s repeated applications to be released and appeals against some of those decisions were either dismissed or rejected.

After the applicant’s criminal case was reconsidered a number of times (upon the order of the court of appeal, mainly because of procedural shortcomings and the incomplete examination of the case by the first‑instance court) on 25 December 2009 the Perevalsk Court convicted the applicant on several counts of drug trafficking and sentenced him to imprisonment of four years and one month. The applicant did not appeal against that judgment.

On 7 December 2009 the applicant’s representative sent a letter to the applicant concerning his legal representation before the Court. At that time the applicant was detained in the Starobilsk Temporary Detention Centre (“SIZO”). The SIZO authorities did not deliver the letter to the applicant. Instead, they wrote to his representative on 24 December 2009, informing him that his letter had been received and that the applicant had been “given explanations as regards his legal representation before the domestic authorities and the Court”.

COMPLAINTS

The applicant complains under Article 5 §§ 1, 3 and 5 of the Convention of the unlawfulness and unreasonable length of his detention pending the criminal proceedings against him and of the absence of a right to compensation in that regard.

The applicant complains under Article 6 § 1 of the Convention of the excessive duration of the proceedings.

The applicant further complains under Article 8 of the Convention of interference with his correspondence by the SIZO authorities.

Finally, the applicant complains under Article 13 of the Convention that no effective remedy was available to him at the domestic level as regards the above complaints under Articles 6 and 8.

QUESTIONS TO THE PARTIES

1. Was the applicant’s detention before his conviction in compliance with Article 5 § 1 of the Convention?

2. Was the length of the applicant’s detention before his conviction in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?

4. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

5. Has there been a violation of Article 8 of the Convention on account of the applicant’s complaint of interference with his correspondence while in detention?

6. Did the applicant have at his disposal an effective domestic remedy for his above complaints under Article 6 § 1 and Article 8, as required by Article 13 of the Convention?

6. Application no. 56920/10

Vitaliy Andreyevich CHENCHEVIK v. Ukraine

Introduced on 30 September 2010

The applicant, Mr Vitaliy Andreyevich Chenchevik, was born in 1975 and lives in Kharkiv.

At about 4 p.m. on 31 March 2010 the applicant was arrested by the police. The police allegedly beat him during his arrest. He was taken to a police station, where he was allegedly again beaten in an attempt to force him to confess to having manufactured and sold drugs. The applicant was given no access to a lawyer. Allegedly, the applicant gave self-incriminating statements to the police.

At about 1 a.m. on 1 April 2010 the police drew up a report stating that the applicant was being arrested on suspicion of drug trafficking, pursuant to Article 115 of the Code of Criminal Procedure of 1960.

Later that day the applicant was taken to a hospital, where he was medically examined. The doctors noted that he had a number of injuries, the most serious being chest trauma and broken ribs. He was also diagnosed with a pneumothorax, for which he underwent surgery on the same day. During that surgery the applicant was administered general anaesthesia. Within several hours of the surgery the applicant was questioned as a suspect by an investigator. According to the applicant, while he had been at the hospital he had been handcuffed to his bed at almost all times and had been constantly guarded by three police officers.

During the applicant’s stay at the hospital the police requested the Oktyabrskyy District Court in Kharkiv to authorise his continued detention. On 2 and 9 April 2010 the court examined the request in the absence of the applicant. It decided that the applicant should remain under arrest for initially ten and then fifteen days because at the time he was undergoing medical treatment at the hospital and further information about him should be collected for the examination of the police request on the merits. The decisions of 2 and 9 April 2010 were not subject to appeal.

On 15 April 2010 the same court allowed the request, considering that the applicant posed a danger to society and was liable to reoffend. In that regard, the court took into account the fact that the applicant had been convicted and sentenced on several occasions in the past and that one of the offences with which he had been charged had been committed during his conditional release from his previous sentence of imprisonment. The court also noted that the applicant was suspected of a serious crime. On 22 April 2010 the Court of Appeal in Kharkiv upheld that decision.

Accordingly, the applicant was taken to the Temporary Detention Centre (“SIZO”) in Kharkiv.

Subsequently, upon his own request, a forensic examination of the applicant’s injuries by a medical expert was ordered. On 28 May 2010 the medical expert issued a report, according to which no cause or time of the applicant’s injuries could be established.

The applicant complained of his ill-treatment by the police to the prosecutor’s office. After the applicant’s complaint was reconsidered a number of times, on 7 October 2011 the prosecutor’s office rejected it as unsubstantiated. On 19 December 2011 that decision was annulled and a new examination was ordered. The applicant alleges that that new examination was futile. He complained to the courts of the ineffectiveness of that examination, but ultimately to no avail.

On 18 October 2011 the applicant was released from detention under an undertaking not to abscond.

After the applicant’s criminal case was remitted several times for additional investigation, on 4 November 2013 the proceedings against him were terminated. Because changes had been made to the official list of substances whose circulation was restricted, the applicant was no longer considered to have committed a crime.

COMPLAINTS

The applicant complains of a violation of Article 3 of the Convention on account of his ill-treatment by the police on 31 March 2010, his questioning by the investigator on 1 April 2010 and his handcuffing while at the hospital.

The applicant also complains under Articles 3 and 13 of the Convention of the ineffectiveness of the investigation into his complaints of ill‑treatment.

The applicant further complains under Article 5 § 1 of the Convention of the unlawfulness of his detention on 1 April 2010 before the arrest report had been drawn up.

The applicant complains under Article 5 § 3 of the Convention that the court hearings of 2 and 9 April 2010 were held in his absence.

QUESTIONS TO THE PARTIES

1. Was there a breach of Article 3 of the Convention, having regard to the applicant’s complaints of ill-treatment by the police on 31 March 2010, his questioning by the investigator on 1 April 2010 and his handcuffing while at the hospital?

2. Did the authorities carry out an effective investigation into the applicant’s above complaints, in accordance with Article 3 of the Convention?

3. Was the applicant deprived of his liberty between 4 p.m. on 31 March 2010 and 1 a.m. on 1 April 2010 in breach of Article 5 § 1 of the Convention?

4. Was there a breach of Article 5 § 3 of the Convention, having regard to the applicant’s complaint that the question of his continued detention was examined in his absence on 2 and 9 April 2010?

7. Application no. 14866/11

Yuriy Valeryanovich BEZYMYANNYY v. Ukraine

Introduced on 21 February 2011

The applicant, Yuriy Valeryanovich Bezymyannyy, was born on 18 May 1965 and is currently serving his sentence in Ukraine.

On 31 October 2007 a certain M. was raped. The next day criminal proceedings were launched in respect of that event. The applicant was questioned, as the victim had identified him as the offender. He denied having committed that crime. Blood and saliva samples were taken from him and the victim for a forensic examination.

On 26 June 2008 the applicant was arrested on suspicion of having committed the crime in question. He remained in detention for the entire duration of the proceedings.

In August 2008 the investigation was completed and the case was referred to the Zavodskyy District Court in Dnipropetrovsk for trial.

On 16 March 2011 the Zavodskyy District Court convicted the applicant of rape and sentenced him to five years’ imprisonment.

On 23 September 2011 the Dnipropetrovsk Court of Appeal quashed that judgment and remitted the case for additional investigation.

In December 2011 the additional investigation was completed and the case was referred to the Zavodskyy District Court for trial.

On 22 February 2013 the court convicted the applicant of rape, having changed the legal classification of his actions, and sentenced him to eight years’ imprisonment. The judgment was based principally on the statements of the victim and a witness, who had both identified the applicant as the offender, and on the report on the forensic examination. On 28 May and 12 December 2013 respectively the Dnipropetrovsk Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld that judgment.

COMPLAINTS

In his submissions, dated 28 March 2011, the applicant complains that from 8 August 2008 (when the case was remitted to the District Court for trial) onwards no time-limit for his detention was ever set. He states that the length of his detention during the court proceedings was unreasonable and that the district court disregarded his numerous applications to be released.

The applicant complains under Article 6 § 1 of the Convention of the excessive duration of the proceedings.

QUESTIONS TO THE PARTIES

1. Was the length of the applicant’s detention between 8 August 2008 and 16 March 2011 in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement under Article 6 § 1 of the Convention?

8. Application no. 19103/11

Yevgeniy Aleksandrovich BURLAKOV and

Ilya Vladimirovich Lysenko v. Ukraine

Introduced on 17 March 2011

The applicants, Mr Yevgeniy Aleksandrovich Burlakov and Mr Ilya Vladimirovich Lysenko, are Ukrainian nationals who were born in 1977 and 1979 respectively. The applicants are being detained in Kharkiv.

At about 11.30 p.m. on 25 June 2010 the applicants were arrested by officers of the Security Service on suspicion of drug trafficking. In the course of their arrest the applicants were allegedly beaten and subjected to different forms of ill-treatment. The officers allegedly continued beating and threatening the applicants after they had been arrested.

In the early hours of 26 June 2010 an ambulance was called to attend Mr Burlakov. The ambulance doctors noted that he had several bruises. He was given treatment in that regard (principally, painkillers) and was advised to undergo further examination and treatment in hospital. At about 8 a.m. on 26 June 2010 Mr Burlakov was taken to hospital where he was examined by different doctors, who noted similar injuries on his body. Subsequently, Mr Burlakov was taken to the prosecutor’s office in Kharkiv, where officers of the Security Service allegedly tried to force him commit suicide.

On 29 June 2010 Mr Lysenko was examined by a medical expert, who noted numerous bruises on his head and limbs.

The applicants complained of their ill-treatment to the prosecutor’s office and the courts. Their complaints were rejected because no fault was found on the part of the Security Service officers.

On 29 June 2010 the applicants were brought before the Chervonozavodskyy District Court, which authorised their further detention. Subsequently, that court and the Kharkiv Court of Appeal issued a number of other rulings prolonging the applicants’ detention. Eventually, they remained in detention for the entire duration of the criminal proceedings against them. The courts’ decisions were based mainly on the grounds that the case was complex and the proceedings were pending, that the applicants were accused of serious crimes, that they might evade investigation and trial and obstruct the establishment of the facts in the case, and that they might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicants’ state of health and family situation had been duly noted. Allegedly, the courts disregarded the applicants’ arguments against their detention. The applicants made repeated applications to be released, but to no avail. Some of those applications were examined by the courts only after long delays; some of them were not examined at all. The applicants were not given an opportunity to take part in some of the court hearings concerning their detention.

In January 2011 Mr Lysenko appointed his sister, Ms Nadiya Lysenko, to represent him in the proceedings before the European Court of Human Rights and signed an authorisation to that effect. On 31 March 2011 Ms Lysenko requested the prosecutor’s office to grant her leave to meet Mr Lysenko in the Temporary Detention Centre (“SIZO”) in Kharkiv, in which he was detained, in order to help him to prepare an application to the Court. In April 2011 the request was refused. Ms Lysenko brought an action challenging that refusal before a district court, but that action was left unexamined. Eventually, in May 2011 the prosecutor’s office granted her application for leave to visit Mr Lysenko in the SIZO. Allegedly, further similar applications did not receive a reply.

On an unspecified date in 2011 Mr Burlakov appointed S. to represent him in the proceedings before the European Court of Human Rights. Even though S. was given formal leave to visit Mr Burlakov in the SIZO, on several occasions the SIZO authorities refused her access to him.

On 25 May 2011 the investigation was completed and the applicants were given until 26 June 2011 to study the case file. The applicants and their representatives were allowed to study the case file only in the presence of a prosecutor and an officer of the Security Service. According to the applicants, they were not given sufficient time and facilities to study all the material contained in the case file.

In June 2011 the case was referred to the Kominternovskyy District Court for trial.

According to the applicants, during their transportation to and from court hearings they had been detained in prison vans and transit cells at the Kominternovskyy District Court with insufficient access to fresh air and no ventilation. They had thus been exposed to high summer temperatures for long periods of time. There had also been occasions on which they had been transported in vans together with inmates suffering from tuberculosis. They had complained of this to the Kominternovskyy District Court, but to no avail.

On 15 August 2014 the Kominternovskyy District Court found the applicants guilty of, inter alia, drug trafficking and sentenced them to more than nine years’ imprisonment.

On 2 July 2015 the Kharkiv Court of Appeal quashed that judgment and remitted the case to the same court for fresh consideration. The fresh proceedings have not been completed to date.

Mr Lysenko suffers from a number of medical issues, including spinal disc herniation and a gallbladder polyp. He was examined by various doctors and provided with treatment while in detention, which he alleges to have been inadequate.

COMPLAINTS

The applicants complain under Article 3 of the Convention of their ill‑treatment by the officers of the Security Service and of the ineffectiveness of the investigation in that regard. Relying on Article 13 of the Convention, they complain that in the light of the authorities’ failure to investigate their alleged ill-treatment no effective domestic remedy was available in that regard.

The applicants further complain under Article 3 of the Convention of the poor conditions in which they were transported to and from court hearings and in which they were detained in transit cells at the Kominternovskyy District Court.

Relying on the same provision, Mr Lysenko complains of the inadequate medical assistance afforded to him while he was in detention.

The applicants also complain under Article 5 § 3 of the Convention that they were not brought promptly before the court after their arrest and that the decisions authorising their continued detention lacked sufficient or relevant reasoning. They complain that the lawfulness of their detention was not reviewed, in accordance with Article 5 § 4 of the Convention. Relying on Article 5 § 5 of the Convention, they complain of the lack of an effective and enforceable right to compensation for their detention, in contravention of paragraphs 3 and 4 of that Article.

The applicants complain, in substance under Article 34 of the Convention, of the restrictions imposed on their contact with their representatives and of their insufficient access to the case file during 2011.

QUESTIONS TO THE PARTIES

1. Was there a breach of Article 3 of the Convention, having regard to the applicants’ complaints of ill-treatment by the officers of the Security Service between 25 and 26 June 2010?

2. Did the authorities carry out an effective investigation into the applicants’ complaints, as detailed above, in accordance with Article 3 of the Convention?

3. Did the applicants have at their disposal an effective domestic remedy under Article 3 of the Convention in respect of their complaints of ill‑treatment by officers of the Security Service between 25 and 26 June 2010, as required by Article 13?

4. Have the applicants been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to their complaints concerning the conditions of their transport to and from court hearings during the trial?

5. Has Mr Lysenko received adequate medical assistance as regards his health problems while in detention, as required by Article 3 of the Convention?

6. Was there a breach of Article 5 §§ 3, 4 and 5 of the Convention, having regard to the applicants’ complaints under those provisions regarding their detention between 25 June 2010 and 15 August 2014?

7. Has there been any hindrance caused by the State in the present case in respect of the effective exercise of the applicants’ right of application, as guaranteed by Article 34 of the Convention?

9. Application no. 47067/11

Sergey Sergeyevich NOVIKOV v. Ukraine

Introduced on 20 July 2011

The applicant, Mr Sergey Sergeyevich Novikov, was born in 1973 and lives in Kharkiv.

On 25 June 2010 the applicant was arrested by officers of the Security Service on suspicion of drug trafficking.

On 29 June 2010 he was brought before the Chervonozavodskyy District Court in Kharkiv, which authorised his further detention. Subsequently, that court and the Kharkiv Court of Appeal issued a number of other rulings prolonging the applicant’s detention. He remained in detention until 6 April 2012, when he was released under an undertaking not to abscond. Between 26 June and 20 July 2011 the applicant was detained, as the case was awaiting examination by the Kominternovskyy District Court. There was no decision authorising the applicant’s detention during that period.

The courts’ decisions authorising the applicant’s detention were based mainly on the grounds that the case was complex and the proceedings were pending, that the applicant was accused of serious crimes, that he might evade investigation and trial and obstruct the establishment of the facts in the case, and that he might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicant’s personal information had been duly noted.

The courts disregarded or made no meaningful assessment of the applicant’s arguments against his detention, including those arguments based on his medical problems. In particular, at the time of his arrest in June 2010 the applicant had been suffering from post-surgery complications in respect of his right foot. Prior to his arrest on 25 June 2010 the applicant on several occasions had undergone surgery to his right foot, as all the five toes had been amputated, and the resulting wounds had failed to heal. Allegedly, no adequate medical assistance had been available to him in detention and he had suffered from severe pain. Although the courts and the prosecutor’s office had detailed information in that regard, they generally did not consider it to constitute grounds for the applicant’s release.

The applicant was given no opportunity to take part in the hearings before the Kharkiv Court of Appeal on his detention and he had no lawyer to represent him at those hearings.

In June 2011 the investigation was completed and the case referred to the Kominternovskyy District Court for trial.

In July 2011 the applicant appointed L. to represent him in the proceedings before the European Court of Human Rights and signed an authorisation to that effect. The applicant and L. lodged a number of applications with the courts for them to be granted leave to meet each other in the Temporary Detention Centre (“SIZO”) in Kharkiv, in which the applicant was detained, in order that L. could help the applicant prepare an application to the Court. Only one such application was granted; the others were either ignored or refused.

COMPLAINTS

The applicant complains, essentially relying on Article 3 of the Convention, of the inadequacy of the medical assistance he received while in detention.

The applicant also complains under Article 5 §§ 1, 3 and 4 of the Convention that his detention between 26 June and 20 July 2011 was not duly authorised, that the decisions authorising his continued detention lacked sufficient or relevant reasoning and that the lawfulness of his detention was not reviewed.

The applicant complains, in substance under Article 34 of the Convention, of the restrictions imposed on his access to his representative.

QUESTIONS TO THE PARTIES

1. Did the applicant receive adequate medical assistance as regards his health problems while in detention, as required by Article 3 of the Convention?

2. Was there a breach of Article 5 §§ 1, 3 and 4 of the Convention, having regard to the applicant’s complaints under those provisions?

3. Has there been any hindrance caused by the State in the present case in respect of the effective exercise of the applicant’s right of application, as guaranteed by Article 34 of the Convention?

10. Application no. 65544/11

Oleg Mykolayovych NIKOLISHEN v. Ukraine

Introduced on 12 October 2011

The applicant, Mr Oleg Mykolayovych Nikolishen, was born in 1981 and lives in Kyiv. He is a practising lawyer (advocate).

In January 2011 the police instituted a criminal investigation against the applicant, one of his clients and several other persons on suspicion of a number of counts of car theft.

On 27 January 2011 the applicant was arrested by the police.

On 28 January 2011 the Darnytskyy District Court in Kyiv authorised his further detention. Subsequently, that court, the Kyiv Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters issued a number of rulings prolonging the applicant’s detention. Ultimately, he remained in detention until 3 December 2012, when he was released on bail. Allegedly, part of the applicant’s detention period was not authorised by a judicial decision.

The courts’ decisions authorising the applicant’s detention were based mainly on the grounds that the case was complex and the proceedings were pending, that the applicant was accused of serious crimes, that he might evade investigation and trial and obstruct the establishment of the facts in the case, and that he might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicant’s personal information had been duly noted.

Some of the applicant’s applications to be released were examined only after long delays, often exceeding one month; others were not examined at all. The courts disregarded or made no meaningful assessment of the applicant’s arguments against his detention, including those based on his medical problems. In particular, during the applicant’s medical examination in August 2011 it had been noted that he had a sebaceous cyst and was suffering from several other health issues. He had been recommended to undergo a specialised examination in that regard, which could not be performed in detention as no adequate facilities had been available. In May 2012 doctors at the Temporary Detention Centre (“SIZO”) in Kyiv, where the applicant had been detained, had found that he had lymphoma. After he had complained to the prosecutor’s office of having received inadequate medical assistance, the prosecutor’s office had instructed the SIZO authorities to provide the applicant with adequate medical treatment and to take him to a civilian hospital. Subsequently, the applicant had been taken to the hospital at the Buchanska Correctional Colony, where he had been diagnosed, inter alia, with Non-Hodgkin lymphoma and chronic hepatitis C. It had been noted that the applicant was in a life-threatening situation. He had been recommended to undergo a specialised examination and treatment at a civilian hospital. Although the courts had detailed information about the applicant’s medical condition, that information was not considered to constitute grounds for the applicant’s release.

The applicant was given no opportunity to take part in some of the hearings on his detention. Neither he nor his lawyers were afforded sufficient time and facilities in which to study the information and documents on which the requests for the applicant’s continued detention were based.

On 30 November 2012 the District Court changed the preventive measure applied to the applicant to that of bail. According to the applicant, the level of bail set by the District Court in its ruling of 30 November 2012 – 75,600 Ukrainian hryvnyas (UAH – at the material time approximately 7,365 euros (EUR)) – was beyond his means. The court allegedly disregarded the fact that all his property had been attached since 1 April 2011 and that he had had no income while in detention. On 3 December 2012 that sum was paid by other persons, including his lawyers.

After the applicant’s release on 3 December 2012 he was found to be suffering from the second-highest official degree of disability.

The criminal proceedings against him are currently pending. No decision on the merits has been taken to date.

COMPLAINTS

The applicant complains under Article 3 of the Convention of the inadequacy of the medical assistance he received while in detention.

The applicant further complains under Article 5 §§ 1, 3 and 4 of the Convention of the unlawfulness and unreasonable length of his detention and of a violation of the guarantee of a review of the lawfulness of his detention. In particular, he argues that that the initial period of his detention was unlawful as the proceedings against him were not brought in accordance with the specific procedural guarantees applicable to advocates in Ukraine and one of the first decisions starting the proceedings against him was overturned on appeal; that his detention between 30 November and 3 December 2012 was also unlawful as under the Code of Criminal Procedure of 1960 which applied in his case he should have been released on 30 November 2012, irrespectively of whether the sum of bail was paid; and that in its decision of 30 November 2012 the District Court failed to assess his ability to comply with the bail condition. He further argues that the decisions authorising his detention were not based on relevant and sufficient reasons; that his requests for release were not examined timely and thoroughly, whereas some of his requests for release were not examined at all; and that when the courts examined the lawfulness of his continued detention his procedural rights were unfairly restricted.

Relying on Article 5 § 3 of the Convention, the applicant also complains that in its decision of 30 November 2012 the District Court failed to assess whether the applicant he had sufficient means to meet bail and disregarded the fact that the applicant needed to be released for medical reasons.

The applicant complains under Article 6 § 1 of the Convention of the excessive length of the proceedings against him.

Lastly, the applicant complains under Article 13 of the Convention of the lack of an effective domestic remedy as regards the above complaints under Articles 3, 5 and 6 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant receive adequate medical assistance as regards his health problems while in detention, as required by Article 3 of the Convention?

2. Was there a breach of Article 5 §§ 1, 3 and 4 of the Convention, having regard to the applicant’s complaints under those provisions?

The Government are invited to address the applicant’s specific complaints under those provisions as set out above, including the applicant’s arguments that the initial period of his detention was unlawful as the proceedings against him were not brought in accordance with the specific procedural guarantees applicable to advocates in Ukraine and one of the first decisions starting the proceedings against him was overturned on appeal; that his detention between 30 November and 3 December 2012 was also unlawful as under the Code of Criminal Procedure of 1960 which applied in his case he should have been released on 30 November 2012, irrespectively of whether the sum of bail was paid; and that in its decision of 30 November 2012 the District Court failed to assess his ability to comply with the bail condition.

3. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for the above complaints under Articles 3, 5 and 6 of the Convention, as required by Article 13?

APPENDIX50829/09Demidetskiy v. Ukraine56358/09Kravtsov v. Ukraine66156/09Shadymov v. Ukraine15691/10Olkhovskiy v. Ukraine17025/10Chmirev v. Ukraine56920/10Chenchevik v. Ukraine14866/11Bezymyannyy v. Ukraine19103/11Burlakov and Lysenko v. Ukraine47067/11Novikov v. Ukraine65544/11Nikolishen v. Ukraine

Full & Egal Universal Law Academy