Communicated on 4 May 2015
FIFTH SECTION
Application no. 30198/11
Yakov Ilkovich STROGAN
against Ukraine
lodged on 10 May 2011
STATEMENT OF FACTS
The applicant, Mr Yakov Strogan, is a Ukrainian national, who was born in 1967 and lives in Kharkiv. He is represented before the Court by Ms A. Mukanova, a lawyer practising in Kharkiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the evening of 15 August 2010 the applicant had a fight with his neighbour. The neighbour complained to the police of having been injured by the applicant.
In the morning of 16 August 2010 the police took the applicant to the Kyivskyy District Police Department of Kharkiv (“the Police Department”). The applicant was at the Police Department from 7 a.m. to 9.45 a.m. During that time the police officers pressed the applicant to admit that he had had an intention to murder the neighbour. The applicant refused and asserted that he had pushed the neighbour only once, acting in self-defence.
According to the applicant, the police officers then took him from the Police Department to a forest where they beat him up and tortured him, using handcuffs and electric shocks. The police officers then brought the applicant to some premises where they continued to ill-treat him. On 19 August 2010 they released him.
The applicant complained of his ill-treatment to the internal security unit of the Kharkiv Regional Police Department. Subsequently, he also complained to the prosecutor’s office.
On 21 August 2010 the applicant was examined by a forensic medical expert who found that the applicant sustained bruises on his head, nose, upper lip and the chest. The expert considered that those injuries could have been caused by blunt solid objects from three to five days before the medical examination.
On 15 September 2010 a forensic medical expert issued a report stating that the applicant’s neighbour had sustained three knife cuts, one of which had been on the neck.
On 23 September 2010 the Police Department opened criminal proceedings concerning the medium severity injuries sustained by the applicant’s neighbour. Subsequently, the case was classified as attempted murder.
On 29 October 2010 the Kyivskyy District Prosecutor’s Office of Kharkiv (“the Prosecutor’s Office”), having conducted the pre-investigation enquiries, refused to open criminal proceedings concerning the applicant’s allegations that he had been ill-treated by police officers between 16 and 19 August 2010. According to the decision, the applicant had stayed at the Police Department only for a few hours on 16 August 2010 and there had been no evidence suggesting that the police officers had been involved in the alleged ill-treatment. The applicant challenged that decision in the courts.
On 9 December 2010 the investigator of the Police Department charged the applicant with attempted murder and arrested him on that account.
Allegedly, on that day the applicant was beaten up by police officers. At 10 p.m. an ambulance arrived at the Police Department to provide the applicant with medical aid. He was then taken to the hospital for examination but the doctors did not document any injuries and the applicant was returned to the Police Department.
On 10 December 2010 the applicant was taken to the Kyivskyy District Court of Kharkiv (“the first-instance court”) for the hearing concerning the preventive measure in his case. The hearing was interrupted as the applicant had to be provided with medical aid. The ambulance team, which arrived at the court, diagnosed the applicant with brain concussion, a left eye hematoma and a bruise on the chest. The court then ordered the applicant’s pre-trial detention. The applicant appealed against that decision.
On 14 December 2010 the applicant was examined by a forensic medical expert. In his report of 15 December 2010 the expert stated that the applicant had sustained bruises on his face, neck, chest, left leg and right shin.
On 16 December 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against the decision of 10 December 2010 finding that there had been grounds for keeping the applicant in custody.
On 21 December 2010 the Prosecutor’s Office, having conduced the pre-investigation enquiries, refused to open criminal proceedings concerning the police brutality which allegedly had taken place on 9 December 2010. According to the decision, there had been no evidence suggesting that the applicant’s injuries documented after the alleged ill-treatment had been caused by police officers. According to the applicant, he challenged that decision before the first-instance court.
On 23 February 2011 the first-instance court found that in its decision of 29 October 2010, the Prosecutor’s Office lawfully rejected the applicant’s complaint of ill-treatment relating to the period between 16 and 19 August 2010. The applicant appealed.
On 25 February 2011 the first-instance court committed the applicant for trial on a charge of attempted murder. As regards the preventive measure, the court ruled that the applicant should be held in custody.
On 11 April 2011 the Court of Appeal upheld the first-instance court’s decision of 23 February 2011. The applicant lodged an appeal on points of law.
On 11 May and 29 September 2011 the first-instance court dismissed the applicant’s requests for changing the preventive measure and maintained its earlier decision to keep the applicant in custody. The court stated that the applicant was charged with a serious offence, he was unemployed, he had criminal records, and he had refused to admit his guilt. As to the question of bail, the court noted that no document was shown to suggest that any funds were available for that purpose.
On 9 February 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the decision of 23 February 2011 as unfounded and remitted the case concerning the applicant’s alleged ill-treatment to the first-instance court for a fresh consideration.
On an unspecified date the applicant was released from custody.
B. Relevant domestic law
1. Constitution of 28 June 1996
The relevant part of Article 29 of the Constitution reads:
“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if, within seventy-two hours of the moment of detention, he or she has not been provided with a reasoned court decision in respect of the detention. ...
Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”
2. Code of Criminal Procedure (“the CCP”) of 28 December 1960 (in force at the relevant time)
Relevant provisions of this Code provided:
Article 106. Arrest of a suspect by the body of inquiry
“The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds:
(1) if the person is discovered whilst or immediately after committing an offence;
(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
(3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established.
...”
Article 115. Arrest of a suspect by an investigator
“An investigator may arrest and question a person suspected of a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”
Article 165-2. Procedure for selection of a preventive measure
“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, or investigator, or prosecutor.
If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor’s consent, shall lodge a request with the court. ...
The request shall be considered within seventy-two hours of the arrest of the suspect or accused.
If the request concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court. In such cases the preliminary detention shall not exceed seventy-two hours; and if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person was brought to the locality.
Upon receiving the request, the judge shall examine the material in the case file submitted by the body of inquiry, or investigator, or prosecutor. A judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor, the defence counsel, if the latter appeared before the court, and take a decision:
(1) refusing to apply the [custodial] preventive measure if there are no grounds for doing so;
(2) applying the custodial preventive measure.
Having refused to apply the custodial preventive measure, the court shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused.
...”
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that in August and December 2010 he was ill-treated by the police officers and that there was no effective investigation of those events.
2. The applicant complains under Article 5 § 1 of the Convention that in August he was arrested and detained unlawfully.
3. The applicant complains that his arrest on 9 December 2010 and further detention until his release in 2012 was not compatible with Article 5 §§ 1 (c) and 3 of the Convention.
4. The applicant complains under Article 5 § 4 of the Convention that he did not have an effective procedure for review of the lawfulness of his detention.
5. The applicant complains under Article 5 § 5 of the Convention that he could not claim compensation in respect of his complaints about unlawful arrest and detention.
QUESTIONS TO THE PARTIES
1. With regard to the alleged events between 16 and 19 August 2010, has the applicant been subjected to ill-treatment, contrary to Article 3 of the Convention?
2. Were the domestic proceedings in respect of the applicant’s allegations of ill-treatment between 16 and 19 August 2010 compatible with the procedural requirements of Article 3 of the Convention?
3. With regard to the alleged events 9 December 2010, has the applicant been subjected to ill-treatment, contrary to Article 3 of the Convention?
4. Were the domestic proceedings in respect of the applicant’s allegations of ill-treatment on 9 December 2010 compatible with the procedural requirements of Article 3 of the Convention?
5. With regard to the alleged events between 16 and 19 August 2010, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
6. Was the applicant’s arrest and detention between 9 and 10 December 2010 on the basis of the investigator’s decision compatible with Article 5 § 1 (c) of the Convention?
7. Was the applicant’s detention between 10 December 2010 and the date of his release compatible with the requirements of Article 5 § 1 (c) and 3 of the Convention?
8. With respect to the period which commenced after the completion of the pre-trial investigation, 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?
9. Did the applicant have an effective and enforceable right to compensation for his arrest and detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?
The Government are invited to provide the following material:
(a) documents concerning the domestic proceedings in respect of the applicant’s allegations of ill-treatment, including decisions by which the authorities refused to open an investigation (or terminated an investigation) and the decisions of the supervising authorities reviewing those decisions;
(b) medical documents concerning the applicant relating to the periods of his alleged ill-treatment;
(c) all the decisions of the domestic authorities concerning the preventive measure in respect of the applicant;
(d) the decisions of the domestic authorities concerning the criminal case against the applicant.
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