Communicated on 26 May 2014
FIFTH SECTION
Application no. 5911/05
Denis Vasilyevich KLEUTIN
against Ukraine
lodged on 7 January 2005
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Denis Vasilyevich Kleutin, is a Ukrainian national, who lives in Odessa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 January 2004 criminal proceedings were instituted against the applicant and two other persons in connection with a robbery.
On the same day, the applicant was apprehended in his apartment and detained as a suspect in those proceedings. He was questioned in the presence of a lawyer but refused to make a statement.
On 24 January 2004 the Primorsky District Court of Odesa (“the District Court”) ordered the applicant’s pre-trial detention. It noted that, if released, the applicant, who already had been convicted in the past, might commit another crime, abscond, impair the establishment of truth and obstruct the course of justice. No time-limit for detention was set in the court’s decision.
On 26 January 2004 the applicant was transferred to the Odesa Temporary Detention Centre (“the Odesa SIZO”). Upon his arrival he underwent a medical checkup, including an X-ray, and was found to be healthy.
On 3 February 2004 the applicant was charged with premeditated robbery as part of a group.
On 18 March 2004 the District Court extended the applicant’s detention for one more month in order to conduct a number of investigative steps to complete the investigation.
On 14 April 2004 the investigation was completed and the criminal case was referred to the trial court.
On 9 August 2004 the applicant complained to the prosecutor that during his apprehension on 22 January 2004 three police officers conducted unlawful search in his apartment and subjected him to moral and physical ill-treatment, having threatened with a firearms and having fractured two ribs.
On 13 September 2004 the prosecutors’ office refused to institute criminal proceedings upon the applicant’s complaint having found no corpus delicti in the police officers’ actions. The applicant did not appeal against this resolution but appears to have lodged a separate complaint regarding the unlawful search and ill-treatment to the District Court. In its replies, the District Court informed the applicant that that complaint would be examined during consideration of his criminal case on the merits.
On 18 April 2005 the District Court remitted the criminal case against the applicant for an additional investigation. It noted, inter alia, that the applicant’s complaints concerning ill-treatment and unlawful search by police had not been duly verified.
On 13 August 2005, after completion of the additional investigation, the case was remitted to the District Court for the applicant to be tried.
On 18 August and 7 November 2005, in July 2006 and on 6 March 2007 the applicant submitted written requests for release to the District Court, claiming, inter alia, that he did not represent a danger to society, had a registered place of residence and was to start his new job at the time when he was arrested.
On 1 August 2006, in reply to the applicant’s lawyer’s request about the applicant’s state of health, the Odessa SIZO authorities provided an information note which, inter alia, referred to the result of an X-ray examination of 25 January 2004 at the city hospital, according to which the applicant lacked a part of the third left rib. The information note also referred to the results of the X-ray at SIZO on 26 January 2004.
In reply to the applicant’s request of 7 November 2005, the court informed the applicant that all petitions should be lodged and examined at the hearing.
On 25 January 2007 the prosecutor amended the charges against the applicant. He was additionally charged with involving minors in a crime.
On 17 May 2007 the District Court ordered the investigative authorities to duly comply, by 30 May 2007, with the its order of 18 April 2005, in particular, to conduct investigation in order to establish if the applicant had been subjected to ill-treatment by police.
On 4 June 2007, having conducted the additional investigation, the prosecutors’ office refused to institute criminal proceedings against the police officers, who apprehended the applicant, having found that no physical force had been applied to the latter and that the applicant had voluntarily agreed to go to the police station.
On 8 June 2007 the applicant was found guilty as charged and sentenced to five years’ imprisonment.
On 15 November 2007 the Odessa Regional Court of Appeal dismissed the applicant’s appeal.
On 2 June 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was beaten by the police during his apprehension and that this fact was not properly investigated by the authorities and that the conditions of his detention in the SIZO were unbearable.. He further states under Article 5 §§ 1 and 3 of the Convention that the court decisions taken in respect of the preventive measure were unreasoned and the overall length of his detention was excessive. He also claims, under Article 5 § 4 of the Convention that no procedure existed under the domestic law enabling him to obtain periodical review of his detention and submits in this respect that all his requests to change the preventive measure remained unanswered.
QUESTIONS
1. Was the applicant subjected to inhuman or degrading treatment by the police officers during his apprehension at his place on 22 January 2004, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from 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?
3 Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention? In particular, were the conditions of the applicant’s detention in the Odesa SIZO in breach of that provision?
3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
4. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
5. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
The Government are invited to provide copies of all documents related to the applicant’s medical examinations from 22 January 2004 until his release from custody, including the X-ray picture of 26 January 2004 accompanied with the radiologist report thereon.
They further requested to provide copies of all documents related to the applicant’s detention on remand, including the applicant’s requests for release pending trial and the relevant responses of the domestic authorities.
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