Communicated on 10 March 2016
FIFTH SECTION
Application no. 78541/14
Oleksiy Igorovych DIRYAVSKYY
against Ukraine
lodged on 9 December 2014
STATEMENT OF FACTS
The applicant, Mr Oleksiy Igorovych Diryavskyy, is a Ukrainian national, who was born in 1992 and lives in Tokmak.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
According to the applicant, prior to the events of 18 April 2012 he had suffered a spinal compression fracture and was recognised as having a category III disability (the least severe disability).
On 18 April 2012 the applicant was invited to go to a police station for an interview concerning a stolen mobile phone. He alleges that, in the course of the interview there, police officer Ch. punched him on the chin and in the chest in order to make him confess to the theft.
On the same day the applicant was questioned as a suspect and confessed to the theft.
At 10.20 a.m. on 19 April 2012 a forensic medical expert observed a haematoma on the applicant’s chin. The applicant explained to the expert that police officer Ch. had punched him several times the day before. The expert classified the injury as minor and came to the conclusion that it could have been inflicted at the time the applicant had indicated.
On 20 April 2012 the applicant asked the Tokmak prosecutor’s office to institute criminal proceedings against officer Ch.
On 21 and 7 July 2012 the prosecutor’s office refused to institute criminal proceedings against officer Ch. The supervising prosecutors overruled those decisions.
On 19 November 2012 the prosecutor’s office again refused to institute criminal proceedings against officer Ch., finding no corpus delicti in his actions. The decision referred to the results of the interviews with the applicant, his mother and two relatives, who confirmed his account. The decision was also based on the statements of officer Ch., another police officer who had witnessed the interview with the applicant at the police station, and an officer who had been on duty at the entrance of the police station on the day in question. The officers denied the applicant’s allegations.
On the same day the new 2012 Code of Criminal Procedure came into force. The Code abolished the procedure relating to pre-investigation enquiries and the initiation of criminal proceedings. Under the new Code, an investigation is commenced by creating an entry in the integrated register of pre-trial investigations.
On 17 February 2013, in response to the applicant’s complaint against the decision of 19 November 2012, the Zaporizhzhya regional prosecutor’s office informed him that, in the light of the abolition of the stage of “pre‑investigation enquiries” under the new Code, he could not appeal to superior prosecutors against the decision of 19 November 2012.
In the course of his trial the applicant complained that his confession had been extracted by the police under duress.
On 24 February 2013 the Tokmak Court convicted the applicant of theft and sentenced him to a fine. In rejecting his allegations of ill-treatment, the court relied on the decision of 19 November 2012 and found that the statements of his mother and other relatives were not trustworthy, because those people had a personal interest in his acquittal.
The applicant appealed, arguing in particular that his confession had been extracted through ill-treatment. He repeated that argument in his subsequent appeal on points of law.
On 24 April 2013 the Zaporizhzhya Regional Court of Appeal upheld the conviction.
On 1 July 2014 the Higher Specialised Civil and Criminal Court refused to review the lower courts’ decisions on points of law.
B. Relevant domestic law
Item 3 of the Transitional Provisions of the Code of Criminal Procedure of 2012 provides:
“3. Complaints and information about crimes received by the investigating authorities, investigators or prosecutors prior to the entry into force of this Code, and in respect of which no decision has been made to institute or refuse to institute criminal proceedings, shall be transferred to the investigating authorities for investigation, in accordance with this Code.”
COMPLAINT
The applicant complains under Article 3 of the Convention that he was ill-treated by the police.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, could the applicant seek the creation of an entry in the integrated register of pre-trial investigations in respect of his complaint against police officer Ch. and its investigation, under the rules of the 2012 Code of Criminal Procedure?
2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?
3. Has the applicant been subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
4. Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
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