Communicated on 3 March 2016
FIFTH SECTION
Application no. 67158/13
Igor Valentynovych PULNYEV and Anna Uchayevna GVALIYA
against Ukraine
lodged on 14 October 2013
STATEMENT OF FACTS
The applicants, Mr Igor Valentynovych Pulnyev and Ms Anna Uchayevna Gvaliya, are Ukrainian nationals who were born in 1964 and 1987 respectively and live in the city of Kherson, Ukraine.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Arrest of the first applicant, his alleged ill-treatment and the subsequent investigation
On 5 April 2012 the first applicant was arrested, handcuffed and allegedly beaten by police officers at a petrol station in Kherson. He was taken to the regional police station in Kherson and on the next day was transported around 800 km to the police station in Volodymyr-Volynskyy, where, according to him, he was asked to testify against an acquaintance who was suspected of murder. The first applicant asserts that, since he refused to testify, criminal proceedings were instituted against him. He remained handcuffed for the majority of time. According to him, when he was moving around, the police officers raised his arms in the air, so he was obliged to walk with his head down and his knees bent.
On 7 April 2012 a police officer based at Volodymyr-Volynskyy police station issued a detention report which stated that the first applicant had been arrested at the police station at around 4.40 a.m. on that day on suspicion of acquiring and selling a stolen car. On the same day he had been examined in the presence of witnesses at the police station in the district of Turiyskyy, and it had been noted that he had had a black eye and scratches on his wrists. The first applicant had also written on the examination report that he had had “a headache and nausea after having been beaten by the Kherson police”. A police officer S. had also reported to the chief of the above police station that the first applicant had had an injury to his lower lip and an incomplete dislocation of his shoulders.
According to the first applicant, following his arrest on 5 April 2012, the first time he was given food and drink was in the evening of 7 April 2012.
On 9 April 2012 the first applicant was transported back to Kherson where he was placed in a temporary detention facility in Bilozerskyy.
On 10 April 2012 he was arrested on suspicion of car theft.
After several refusals to institute criminal proceedings, which were subsequently quashed by a court, criminal proceedings were finally instituted on 28 December 2012 following complaints by the first applicant of ill-treatment. On 13 April 2013 the Suvorovskyy district prosecutor’s office in Kherson terminated those proceedings for absence of evidence of a crime. It was concluded that the first applicant had sustained the black eye from falling down.
On 16 April 2013 the Dniprovskyy District Court sent the criminal case against the first applicant concerning his alleged involvement in numerous car thefts for additional investigation and released him. The court noted, in particular, that there was evidence that he had been arrested on 5 April 2012.
In June 2013 the first applicant made a complaint to a prosecutor regarding the failure to identify the origin of his other injuries. He also made a complaint to a court regarding the prosecutor’s inactivity, however, on 6 August 2013 the court rejected his complaint, since the criminal proceedings had already been terminated. There is currently no information about any further developments in that case.
Following the first applicant’s complaints, on 16 September 2013 the Komsomolskyy District Court ordered a prosecutor to institute criminal proceedings in respect of his allegedly unlawful detention between 5 and 10 April 2012.
On 17 September 2013 the first applicant was informed that, following the court’s decision of 16 September 2013, criminal proceedings had been instituted. According to him, those proceedings are still pending.
2. Seizure of the second applicant’s car and items of property
The second applicant, who is the first applicant’s civil wife, states that in May 2011 she bought a Chevrolet Lacetti car. The first applicant was driving that car at the moment of his arrest on 5 April 2012. The car was seized by the police on the same date together with 15,000 United States dollars (USD) and various items of property (perfumes, gloves, keys, for example) which were in the car when the first applicant was arrested.
By a letter of 6 August 2012 the Suvorovskyy district prosecutor’s office informed the second applicant that the car had been seized as “an instrument of a crime”.
On 10 September 2012 the same prosecutor’s office refused to institute criminal proceedings following complaints by the second applicant that the police officers had unlawfully seized her car, money and items of property.
On 21 November 2012 a court quashed that decision and remitted the case for additional investigation. On the same day criminal proceedings were instituted.
On 24 April 2013 the Suvorovskyy district prosecutor’s office terminated those proceedings for absence of evidence of a crime. An investigation officer K. testified that there had been no money inside the car, but money imitation. The car was returned to a third party, who was its owner. The criminal proceedings in respect of the car theft were stayed because of impossibility to find the thief.
That decision was upheld by the courts.
COMPLAINTS
The first applicant complains under Articles 3, 6 and 13 of the Convention of ill-treatment by the police and the failure to conduct an effective investigation following his complaints.
He further complains under Article 5 §§ 1, 2 and 5 of the Convention of his unlawful arrest and detention between 5 and 10 April 2012, that he was not informed of the reasons for his arrest, and that it is impossible for him to claim compensation for those alleged breaches.
The second applicant complains under Article 1 of Protocol No. 1 of the unlawful seizure of her car, USD 15,000 and numerous items of property that were in the car. She also complains of the absence of an effective remedy in respect of that alleged breach of her property rights.
QUESTIONS TO THE PARTIES
1. Has the first applicant been subjected to inhuman or degrading treatment, 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 first applicant deprived of his liberty between 5 and 10 April 2012 in breach of Article 5 § 1 of the Convention?
4. Was the first applicant informed of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?
5. Did the first applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 2, as required by Article 5 § 5 of the Convention?
6. Has there been an interference with the second applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
7. If so, was that interference in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1, and did it impose an excessive individual burden on the second applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
8. Did the second applicant have at her disposal an effective domestic remedy for her complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy