FIFTH SECTION

DECISION

Application no. 39213/05 Iryna Mykolayivna TERESHCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 October 2011 as a Chamber composed of:

Dean Spielmann , President, Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Isabelle Berro-Lefèvre , Ann Power-Forde , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 October 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Iryna Mykolayivna Tereshchenko, is a Ukrainian national who was born in 1966 and lives in K yi v. She was represented before the Court by Mr A.P. Bushchenko, 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.

1. Events of 10 and 11 September 2004

O n 10 September 2004 the police officers took the applicant to the Holosiyivskyy District Police Department of Kyiv ( “ the P olice D epartment”) in order to question her about a crime allegedly committed by I. , one of the applicant ’ s colleagues. A number of the applicant ’ s co-workers were also taken to the Police Department for the same reason .

According to the applicant, she was held in the Police Department from 3 p.m. on 10 September to 1 a.m. the next day.

At 10 a.m. on 11 September 2004 the applicant was allegedly again taken to the Police Department, where she was questioned further and released at 7 p.m. that day.

While the applicant was being held in the Police Department she was allegedly physically and psychologically coerced to testify against I. ; the reasons why she had been brought to the Police Department were not immediately explained to her; and her relatives were not informed of her whereabouts.

2. Challenging the lawfulness of the police officers ’ acts

On 19 January 2005 the applicant lodged a complaint under Article 106 of the Code of Criminal Procedure (“the CCrP”) with the Holosiyivskyy District Court of Kyiv ( “ the District Court ”) against the police officers . She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her. The applicant invoked Articles 29 and 55 of the Constitution in support of her complaint.

By letter of 1 February 2005 the President of the District Court replied that her complaint under Article 106 of the CCrP could not be considered by the court since she had not been arrested as a suspect.

3. Requesting a criminal investigation on this matter

On 22 February 2005 the applicant lodged with the Prosecutor ’ s Office of the Holosiyivsky District of Kyiv ( “ the P rosecutor ’ s O ffice”) an application for criminal proceedings to be instituted against the police officers . The applicant alleged that she had been unlawful ly arrested, the reasons for the arrest had not been explained to her, and she had been ill ‑ treat ed by the police officers .

By a letter of 24 March 2005 the Prosecutor ’ s Office informed the applicant that her application was unsubstantiated. It noted that at about 6 p.m. on 10 September 2004 the applicant and her co-workers were taken to the Police Department for an interview concerning a crime allegedly committed by I.; at 9 p.m. the applicant left the Police Department; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under Article 97 of the CCrP.

O n 9 April 2005 the applicant challenged the P rosecutor ’ s O ffice ’ s reply of 24 March 2005 before the District Court in accordance with the procedure provided by Article 236-1 of the CCrP. The applicant alleg ed that the Prosecutor ’ s Office had unlawfully refused to institute criminal proceedings.

On 22 June 2005 the District Court dismissed the applicant ’ s complaint . It noted that under Article 236-1 of the CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings. No such a decision had been taken in the applicant ’ s case.

On 29 June 2005 the applicant and her lawyer lodged an appeal against that decision.

On 8 September 2005 the Kyiv City Court of Appeal upheld th e decision of the District Court .

B. Relevant domestic law and practice

1. Constitution of Ukraine of 28 June 1996

The relevant provisions of the Constitution read as follows:

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.

In the event of an urgent need 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 he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

Article 55

“Human and citizens ’ rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bod ies, officials and officers...”

2. Code of Criminal Procedure of 28 December 1960 (in the wording relevant at the material time)

Article 97. Obligation to accept applications or communications with re g ard to crimes and the procedure for their examination

“A prosecutor, investi g ator, body of inquiry or a jud g e shall be obli g ed to accept applications or communications as to the committed or prepared crimes, includin g in cases that fall outside their competence.

Followin g an application or communication about a crime the prosecutor, investi g ator, body of inquiry or a jud g e shall be obli g ed, within the three-day time limit, to adopt one of the followin g decisions:

( 1) to institute criminal proceedin g s ;

(2) to refuse to institute criminal proceedin g s ;

(3) to remit the application or communication for further examination accordin g to jurisdiction . ...”

Article 106. Detention of a criminal suspect by the body of inquiry

“The body of inquiry shall 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 only 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 which gives grounds for suspicion that a person has committed a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.

For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel , starting with the moment of his arrest , in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee.

A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as ground s for the detention shall be sent to him as well. ...

Within seventy-two hours of the arrest , the body of inquiry shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the detention is appealed against to a court, the detainee ’ s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.

The ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court ’ s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body which carried out the arrest accordingly.”

Article 236-1 . Challenge in court of a decision to refuse to institute criminal proceedin g s

“Complaints a g ainst a decision of a prosecutor, an investigator or a body of enquiry to refuse to institute criminal proceedin g s shall be lod g ed wit h the district (city) court ... by the person whose interests are touched upon, or a rep resentative of that person, ... within seven days of its receipt or information g iven by the prosecutor that he has refused to quash the decision.”

Article 236-2 . Judicial examination of a complaint a g ainst a decision refusing to institute criminal proceedin g s

“Complaints a g ainst a decision of a prosecutor , investi g ator or body of inquiry to refuse to institute criminal proceedin g s shall be examined by a single jud g e within ten days of the arrival of the complaint at the court.

The jud g e shall request relevant materials on which the refusal to initiate criminal proceedin g s was based , examine them and inform the prosecutor and the complainant of the date when it will be examined. If necessary, a jud g e shall hear explanations by the complainant.

... the jud g e shall take one of the followin g decisions :

1) to quash the decision refusin g to initiate criminal proceedin g s and return the case file materials for additional examination ;

2) to reject the complaint .

Within seven days of its adoption the decision of a jud g e may be appealed a g ainst to the court of appeal by a prosecutor or a complainant .

A copy of the jud g e ’ s decision shall be sent to the person who has adopted the contested decision , the prosecutor and the complainant .”

3. Code of Civil Procedure of 18 July 1963 (in force at the material time)

Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials.

In particular, Article 248-1 of the Code provide d that anyone who consider ed that his or her rights or freedoms ha d been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court. Article 248-3 §§ 1 and 4 of the Code provide d that such complaints were outside the courts ’ jurisdiction if they concern ed a decision, act or omission by an official of a bod y of inquiry, pre-trial investigation authority, prosecutor ’ s office or court which could be challenged by a different procedure.

4 . Decision no. 6-pп/2001 of the Constitutional Court of 23 May 2001 concerning the constitutionality of Article 248-3 §§ 3, 4 and 5 of the Code of Civil Procedure of 1963

In this d ecision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decision s , act s or omission s by officials of bod ies of inquiry, pre-trial investigation authorities or prosecut or ’ s offices in cases where the legislation provide d only for a non-judicial remedy.

5. Plenary Supreme Court Resolution of 11 February 2005 (in force at the material time)

According to this Resolution, i nactivity on the part of a body of enquiry, investi g ator or prosecutor resultin g in a decision not bein g taken under Article 97 § 2 of the Code of Criminal Procedure could be challenged by a procedure established in Chapter 31- А of the Code of Civil Procedure .

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that on 10 and 11 September 2004 she was ill-treated by police officers and that there had been no effective investigation in th at regard.

2. The applicant complain ed under Article 5 § 1 of the Convention that on 10 and 11 September 2004 she was unlawfully arrested and held in the Police Department .

3. She further complain ed under Article 5 § 2 of the Convention that she was not informed of the reasons for her arrest.

4. Relying on Article 5 § 5 of the Convention, the applicant complain ed that she could not obtain redress for the alleged breach of Article 5 §§ 1 and 2 of the Convention.

5. The applicant complain ed under Article 13 of the Convention that she had no effective remedies in respect of the alleged ill-treatment and unlawful detention .

THE LAW

1. The applicant complained that on 10 and 11 September 2004 she was subjected to ill-treatment prohibited by Article 3 of the Convention and no effective investigation was held in that regard.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that on 22 February 2005 the applicant raised the complaint of ill-treatment before the Prosecutor ’ s Office. In reply, the Prosecutor ’ s Office did not take any decision under Article 97 § 2 of the CCrP, but sent a letter informing the applicant that her application was unsubstantiated.

In these circumstances the applicant ’ s subsequent complaint against the Prosecutor ’ s Office under Article 236-1 of the CCrP could not have any prospect of success, as only a formal decision on refusal to institute criminal proceedings could be challenged by means of that domestic procedure. These procedural steps cannot therefore count for exhaustion purposes and do not influence the moment of calculation of the six-month time-limit (see Rezgui v. France (dec.), no. 49859/99 , 7 November 2000 ).

Instead, the applicant could have instituted an action under Chapter 31-A of the Code of Civil Procedure (“the CCvP”) seeking that the Prosecutor ’ s Office comply with requirements of Article 97 § 2 of the CCrP (see the relevant provisions of the CCvP, Decision of the Constitutional Court of 23 May 2001, Plenary Supreme Court Resolution of 11 February 2005 referred to under “Relevant domestic law” above).

The Court therefore considers that, in view of the requirements of Article 35 § 1 of the Convention, the applicant should have either exhausted the domestic remedy, provided for in Chapter 31-A of the CCvP, or applied to the Court within the six-month time-limit from the moment of prosecutor ’ s office ’ s reply of 24 March 2005 if no further steps were deemed necessary for the purpose of the exhaustion rule. As this has not been done, the respective part of the application should be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant complained that on 10 and 11 September 2004 she had been unlawfully arrested and detained in the Police Department and that the reasons for her arrest had not been explained to her. She relied on Article 5 § 1 and 2 of the Convention, which reads, in so far as relevant, as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. ...”

The Court notes that the applicant raised these issues in her domestic complaint submitted under Article 106 of the CCrP. That complaint was declined by the President of the District Court on 1 February 2005, which was more than six months before the application was introduced to the Court (25 October 2005).

The Court further notes that the applicant also raised these issues in her application of 22 February 2005 to the Prosecutor ’ s Office seeking criminal prosecution of the police officers. Even assuming that the criminal-law remedy was appropriate for the present complaints under Article 5 of the Convention, the Court, having regard to its conclusion under Article 3 of the Convention above, considers that they should be rejected as inadmissible for the same reasons.

The Court therefore holds that this part of the application should be rejected as inadmissible in accordance to Article 35 §§ 1 and 4 of the Convention.

3. The applicant complained that she could not obtain compensation for the alleged breach es of Article 5 §§ 1 and 2 of the Convention. She relied on Article 5 § 5 of the Convention, which reads as follows:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court observes that the right to compensation, set forth in Article 5 § 5 of the Convention, presupposes that a violation of one of the preceding paragraphs of that Article has been established. In the present case there has been no such conclusion , either by the domestic authorities or by the Court. Accordingly, Article 5 § 5 of the Convention is not applicable (see Slavcho Kostov v. Bulgaria , no. 28674/03, §§ 73 and 74, 27 November 2008).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

4. The applicant complained that she had no effective remedies for her complaints of unlawful detention and ill-treatment by police officers. She relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

T he Court, having declared the relevant issues under Articles 3 and 5 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, § 82 , 27 May 2008 ). It follows that the applicant ’ s complaint under Article 13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 .

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Dean Spielmann Registrar President