FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11408/02 by Lyudmila Anatolyevna LYSAYA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 1 February 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Boštjan M. Zupančič , Ann Power , Ganna Yudkivska , Angelika Nußberger , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 11 February 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Lyudmila Anatolyevna Lysaya, is a Ukrainian national who was born in 1968 and lives in Bokovo-Platovo, in the Lugansk region. She was represented before the Court by Mr N. K. Kozyrev, a lawyer practising in Lugansk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 10 September 2000 the applicant ’ s husband , Mr L., who had no previous criminal record, was apprehended on suspicion of theft . The same day he confessed to having been an accomplice in a theft committed with two other individuals .

4 . On 13 September 2000 the prosecutor of Antratsyt charged the applicant ’ s husband with theft and decided to place him in the Temporary Detention Centre of the Antratsyt Police Department ( the IT T ) in cell no. 6, which he shared with three other detainees, Mr S. , Mr A. and Mr Kh.

5 . On 14 September 2000 the applicant ’ s husband was examined by a medical team at his own request. A doctor gave him an injection of chlorom azine, finding that the applicant ’ s husband was suffering from minor bodily injuries and hallucinations as a result of alcohol intoxication.

6 . On 17 September 2000 at 10.25 a.m. the ITT administration requested medical assistance for the applicant ’ s husband. He was transferred by ambulance at 10.40 a.m. to the emergency unit of the Gorl i vka Central Hospital , where he died on 18 September 2000.

7 . According to the autopsy report of 19 September 2000, the applicant ’ s husband died from serious multiple bodily injuries , namely; head and chest injuries, a brain haemorrhage, a broken chest bone, broken ribs on both sides, injuries to his lungs inflicted by fragments of broken ribs and chest bones, and an internal haemorrhage into the kidneys and stomach.

8 . On 2 October 2000 the applicant lodged a complaint with the General Prosecutor ’ s Office against the officers of the Antratsyt Police Department for murdering her husband.

9 . On 12 October 2000 the Antratsyt Prosecutor ’ s Office instituted criminal proceedings into the death of the applicant ’ s husband.

10 . On 13 October 2000 the Prosecutor of Antratsyt sent a petition to the Head of the Antratsyt Police Department, referring to violations of regulations in the Antratsyt ITT, in particular the placing of persons without any previous criminal record with those who had been convicted before, and failure of the ITT officers to comply with their duties properly and to react effectively to breaches of discipline by detainees. The Prosecutor requested that the officers responsible for the situation involving the applicant ’ s husband be disciplined.

11 . On 17 October 2000 the Antratsyt Police Department conducted an internal inquiry, which resulted in disciplinary sanctions against some of the police officers. The results of the disciplinary proceedings were reviewed and overruled o n 24 October 2000 by the Lugansk Regional Police Department, which issued an order acknowledging that the failure of the officers of the Antratsyt police station to isolate the applicant ’ s husband and the violation of police regulations had led to serious circumstances. They decided to impose stricter disciplinary sanctions on those responsible and their superiors. As a result , four officers were downgraded in their positions, nine officers were warned about their partial non-compliance with the requirements of their posts, and two more officers were reprimanded.

12 . On 30 October 2000 the investigation charged Mr S. with inflicting bodily harm on the applicant ’ s husband.

13 . On 20 November 2000 an additional forensic medical examination was ordered by the investigator to define which injuries had been inflicted on the applicant ’ s husband by each of his cellmates.

14 . On 22 November 2000 the investigation charged Mr A. with inflicting bodily harm on the applicant ’ s husband.

15 . On 27 November 2000 the investigation conducted an on-site reconstruction of the crime with Mr S.

16 . On 20 December 2000 the additional forensic medical examination was carried out.

17 . On 25 December 2000 the prosecutor Zh. refused to institute criminal proceedings against the police officers of the Antratsyt Department for lack of proof of their involvement in the crime

18 . On 25 December 2000 the applicant filed a claim for damages against Mr S. , Mr A. and Mr Kh.

19 . On 26 December 2000 the investigation charged Mr Kh. with inflicting bodily harm on the applicant ’ s husband.

20 . On 27 December 2000 the applicant studied the case file, which contained all the procedural decisions taken prior to that date.

21 . On 30 December 2000 the investigation was completed and the criminal case was sent to the Antratsyt Town Court (“the Antratsyt Court ”) for examination.

22 . On 19 January 2001 the Antratsyt Court held a preparatory hearing and accepted the case for examination.

23 . On 8 February 2001, the Non-Governmental Committee for the Protection of Constitutional Rights and Freedoms of Citizens allowed the applicant ’ s request for assistance in the protection of her rights in the proceedings and authorised Mr Kozyrev to act in the criminal proceedings as a “public accuser” in her interests. The same day the above-mentioned NGO requested the Antratsyt Court to admit Mr Kozyrev as a “public defender” in the criminal proceedings concerning the death of the applicant ’ s husband.

24 . In the course of the proceedings, the applicant alleged that her husband had been tortured by the police, had had a broken skull and metal objects under his nails. On 3 April 2001 an additional forensic medical examination, ordered by the court, provided further clarifications in relation to the previous expert opinions. The expert confirmed that the applicant ’ s husband had sustained numerous injuries, but denied the existence of the broken skull and presence of metal objects under the nails of the victim, as alleged by the applicant.

25 . On 15 June 2001 the Antratsyt Court found Mr S. , Mr A. and Mr Kh. guilty of inflicting bodily injuries on the applicant ’ s husband , causing his death. The court also found that the police officers had had no reason to beat the applicant ’ s husband, as he had already pleaded guilty by the time of the incident . It also found that the applicant ’ s husband had been suffering from chronic alcoholism and had been very aggressive towards the other cellmates. It found that the injuries had been inflicted by the persons who were held in the same cell with the applicant ’ s husband, who had been defending themselves against his aggressi ve behaviour, which had been caused by his alcohol-related dependence ( delirium tremens ). T he court stated that the applicant ’ s husband had sustained the following injuries on 14 September 2000: a cerebral haemorrhage, haemorrhage of both eyelids, left auricle and lips, a broken nose, an injury to the lower eyelid, abrasion of the lumbar region, a haemorrhage of the right kidney capsule and bruises to the lumbar region , all of which amounted to “ moderate bodily injuries ” for the purposes of assessing the impact on his health. The court further established that on 14-15 September 2000 the applicant ’ s husband had been severely beaten by Mr S. and had had a conflict with other detainees. Moreover, it found that on 16 September 2000 Mr S. had tied the applicant ’ s husband up with a shirt and left him lying injured on the floor of the cell until the next morning. The court sentenced Mr S., Mr A. and Mr Kh. to seven, three and two years of imprisonment. The judgment also mentioned that no civil claim had been lodged in the case.

26 . On the same day the Antratsyt Court made a separate ruling concerning shortcomings in the work of investigation. It noted that the allegations of the applicant as to signs of torture had not been fully checked at the pre-trial stage and therefore the court had had to order an additional forensic examination to verify the applicant ’ s allegations (see paragraph 24 above), although that examination could have been carried out at the pre-trial stage.

27 . On 21 June 2001 Mr S. lodged an appeal in cassation with the Lugansk Regional Court . Not denying the fact that he had beaten the applicant ’ s husband, he claimed that he had acted in self-defence and therefore requested a re-examination of the case.

28 . Having been informed that Mr S. had lodged an appeal against the judgment of 15 June 2001, the applicant decided not to appeal against that judgment. She did not submit any written submissions to the appeal of Mr S. According to the applicant she had expected to present her arguments orally, but she had not been duly notified of the date of the hearing. According to the Government, the relevant notification had been sent to the applicant.

29 . Following amendments to the Code of Criminal Procedure, which entered into force on 29 June 2001 and introduced three levels of jurisdiction in lieu of two, the Lugansk Regional Court (now the Lugansk Regional Court of Appeal) examined the case as a second, appellate instance o n 7 September 2001 . Mr Kozyrev, who had allegedly found out about the hearing by chance , was not allowed to present his arguments to the Lugansk Regional Court of Appeal , since he was not legal counsel for the applicant or any other party, while the procedural figure of public accuser, in which capacity Mr Kozyrev had entered the proceedings in the first instance, had been completely abolished following the above-mentioned amendments to the Code of Criminal Procedure. The court , in the absence of the parties , upheld the judgment of 15 June 2001 with minor amendments . It found no evidence that injuries had been inflicted on the applicant ’ s husband by police officers.

30 . The applicant appealed in cassation to the Supreme Court. She maintained that her husband had been killed by the police officers and the sentenced persons had confessed to a crime that they had not committed. She further complained that she could not present her arguments to the court of appeal as she had not been duly summoned to it.

31 . On 11 July 2002 the Supreme Court rejected the applicant ’ s appeal in cassation against the judgment of 15 June 2001 and the decision of 7 September 2001, respectively, as being unsubstantiated. The court noted that under the law it could not reassess the factual circumstances of the case in cassation. It also found the conclusions of the lower courts well-founded .

B. Relevant domestic law

Code of Criminal Procedure

32 . Prior to 29 June 2001 the criminal proceedings in Ukraine had comprised two level s of jurisdiction : a first - instance court and a court of cassation. After a judgment had been given by a first-instance court, the parties had seven days to lodge an appeal in cassation.

33 . The Code defined the roles of “public accuser” and “public defender”, which were introduced in Soviet times with the aim of achieving a more active participation of the public in criminal proceedings. Under Article 265 of the Code of Criminal Procedure representatives of non-governmental organisations and groups of employees could participate in judicial proceedings (not at the stage of investigation) both on the side of the prosecution and on the side of the defence. The court could rule to allow a representative of an NGO to participate as a “public accuser” in the court hearings on behalf of his or her organisation. Under the said Article the public accuser was entitled to give testimonies, to examine evidence, make requests, express his or her opinion about the requests of other participants in the proceedings, to request withdrawals, to take part in the court deliberations, and giv e his or her opinion. The public accuser was not entitled to appeal against a judgment of a court in a criminal case in which he or she had participated. The role of public accuser was complementary to that of the prosecutor and the representative of the aggrieved party .

34 . Following the Amendment Act of 21 June 2001 ( which entered into force on 29 June 2001), criminal proceedings are examined at two or three levels of jurisdiction depending on the seriousness of the case. If the case was first decided in a local court, the decision is appealable to the regional court of appeal and then to the Supreme Court, as a court of cassation. The Act also repealed the provisions concerning the roles of “public accuser” and “public defender” in their entirety.

COMPLAINTS

35 . The applicant complained that Articles 2 and 3 had been violated as the domestic authorities had failed to ensure the physical integrity of her husband, at least by intervening to prevent hi m being beat en , and had failed to investigate her allegations concerning her husband ’ s torture and ill-treatment in police custody by police officers. The applicant further complain ed that her husband had not been provided with adequate and timely medical assistance for his injuries.

36 . The applicant further complained that her rights guaranteed by Article 6 § 1 of the Convention had been infringed by the domestic judicial authorities, in that they had unfairly assessed the evidence presented to them and arbitrarily established the facts of the case in the course of the domestic proceedings. She also complained that the hearing before the Lugansk Regional Court of Appeal had been held in her absence and that she had not been informed of the date and time of it . She further complained that the “public accuser” Mr Kozyrev was not heard during the hearing in the court of appeal.

37 . She further alleged that Article 13 of the Convention was infringed as she had had no effective remedies for the above complaints.

THE LAW

I. ARTICLE 6 § 1 OF THE CONVENTION

38 . The applicant complained that the criminal proceedings concerning the death of her husband had been unfair. She considered that the wrong persons had been found guilty and that it was the police who had been responsible for inflicting bodily harm on her husband. She also complained that the proceedings in the court of appeal had been held in her absence and that the “public accuser” Mr Kozyrev had not been allowed to take part in those proceedings. She referred to Article 6 § 1 of the Convention, which read as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

39 . The Government maintained that the applicant herself was responsible for her failure to present her arguments in the appeal proceedings, as she had neither lodged an appeal nor reacted to the appeal of Mr S.

40 . The applicant disagreed. She maintained that she had expected to present her arguments at the hearing but she had not been summoned to the appellate court.

41 . The Court notes that the complaints concerning the participation of Mr Kozyrev in the domestic proceedings must be rejected for being incompatible ratione personae , given that he is not an applicant in the present case and he was not a formal representative of the applicant in the domestic proceedings. Although his involvement in the domestic proceedings could be viewed as beneficial to the applicant, he was not representing her but his own organisation and moreover his procedural status, however limited, ceased to exist as of 29 June 2001 and was not replaced by any formal agreement between the applicant and Mr Kozyrev as to the representation of the former in the proceedings complained about.

42 . As to remainder of the complaints under Article 6, it should be recalled that the Convention does not confer any right to “private revenge” . Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently. Nevertheless, an issue may arise regarding the victim ’ s exercise of the right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- I ). In the present case, the judgment of the first-instance court mentioned that no civil claim had been lodged within the criminal proceedings; neither did the applicant mention any such claim. At the same time, the criminal case file contained a copy of a civil claim of 25 December 2000 addressed to the first-instance court in which she sought damages for the death of her husband. This claim, however, bears no stamp or other evidence of its lodging with the court and is directed solely and exclusively against the cellmates of her late husband - Mr S. , Mr A. and Mr Kh. The Court observes that this claim contradicts the applicant ’ s assertions under Article 6, namely, that the conviction of the above individuals was erroneous, that they were innocent and that the police were responsible for inflicting the bodily harm on her late husband. Taking into account the above and the fact that no civil claim was lodged against the police, the Court considers that the above-mentioned civil claim, even assuming that it had been formally lodged with the domestic courts, cannot be said to have any bearing on the applicant ’ s civil rights and obligations in this aspect of the case, and accordingly the complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II. ARTICLES 2, 3 AND 13 OF THE CONVENTION

43 . The applicant complained that the domestic authorities had been responsible for the ill-treatment of her husband, which had led to his death , and had failed to investigate the circumstances of his death effectively . She referred to Articles 3 and 13 of the Convention and in substance to Article 2 § 1 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case, decided to examine the problems raised by the applicant under Articles 2 § 1 and 3 of the Convention, which are the relevant provisions and which provide as follows:

Article 2 § 1

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

Article 3

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

44 . The Government maintained that the applicant had not exhausted the remedies available to her under domestic law. In particular, she had failed to challenge before the domestic courts the prosecutor ’ s decision of 25 December 2000 not to institute criminal proceedings against the police officers for the alleged ill-treatment of the applicant ’ s husband. According to the Government, within such criminal proceedings the applicant could also have lodge d a civil claim for damages. Furthermore, in the criminal proceedings against the persons convicted for inflicting bodily harm on her late husband, the applicant had not appeal ed against the judgment of the Antratsyt Court of 15 June 2001.

45 . Alternatively, the Government considered that the applicant ’ s complaints concerning the alleged beating of her husband by the police officers had been lodged outside the six - month time-limit , given that the final decision had been taken in December 2000 and the applicant had lodged her application in February 2002.

46 . The applicant disagreed. She asserted that she could not have challenged the prosecutor ’ s refusal to institute criminal proceedings against the police officers since she had not been notified of that decision. She further contended that she had not appealed against the judgment of 15 June 2001 because one of the convicted persons had done so and she had expected to be able to present her arguments in the court, but was not summoned.

47 . The Court reiterates that individuals in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies (see, for example, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII). The Court notes that following the death of the applicant ’ s husband the domestic authorities conducted an investigation into his death and found and punished those responsible. They looked at the applicant ’ s allegations of the police ’ s direct involvement in the death and rejected them. The authorities also acknowledged that the prison officers had not dealt with the incident of prison violence which led to the death of the applicant ’ s husband properly.

48 . As to the steps taken by the applicant, the Court observes that she did not appeal against the decision of 25 December 2000 not to institute criminal proceedings against the police for ill-treatment and murder of her husband, which she had to be aware of (see paragraph 20 above), to the domestic courts. Neither did she lodge any claim for compensation or any criminal complaint against the police officers in respect of their failure to safeguard the life of her husband.

49 . As to the criminal proceedings against Mr S. , Mr A. and Mr Kh., the applicant did not introduce an appeal in cassation against the judgment by which the first-instance court found the above-mentioned cellmates of her husband guilty of his beatings and murder, although the regional court was the only higher court in the course of ordinary proceedings at the material time. In failing to do so, she relied on the fact that one of the convicted persons had lodged an appeal, although his appeal concerned his allegations of acting in self-defence against the applicant ’ s husband and not the completely different version of the facts alleged by the applicant at the domestic level and before the Court. The fact that due to changes in legislation the applicant later had the chance to appeal to a newly established third-instance court could not remedy that failure, since the third-instance court ’ s competence was mainly limited to conducting a review on points of law and not a review of the facts, which was asserted by the Supreme Court itself in its reasoning for rejecting the applicant ’ s appeal in cassation (see paragraph 26 above).

50 . In the light of the above, taking into account the actions taken by the authorities and the applicant ’ s failure to take sufficient steps at the domestic level to pursue her complaints raised before this Court, it follows that the applicant ’ s complaints under Articles 2 and 3 of the Convention must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Dean Spielmann Registrar President