FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17323/04 by Alim Ayderovich ISMAILOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 31 March 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Alim Ayderovich Ismailov , is a Ukrainian national who was born in 1976 and is currently serving his sentence in Kolomiyska Penitentiary no. 41, Ivano-Frankovsk region .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On the night of 14 to 15 March 2001 the applicant and three co-suspects were arrested on suspicion of armed robbery. The applicant claims that while in police custody he was questioned by the police on several occasions without his lawyer being present.

On an unspecified date the applicant was placed in pre-trial detention. He r emained in detention during the criminal proceedings that were brought against him.

On 23 March 2001 the applicant was formally charged with robbery. He was subsequently also charged with membership of an armed gang, extortion, illegal possession of a firearm and hooliganism.

On an unspecified date the applicant was committed to stand trial. His three co-suspects were committed for trial on charges of membership of an armed gang and robbery.

The applicant has stated that on several occasions during the trial proceedings he unsuccessfully asked the court to appoint his father as his r epresentative .

On 5 November 2002 the Zheleznodorozhny District Court of Simferopol (hereafter “the Zheleznodorozhny Court ”), following an adversarial trial, found the applicant and his co-defendants guilty as charged. The applicant was sentenced to ten years ' imprisonment with deduction of the time spent in preventive detention since 15 March 2001. The applicant lodged an appeal against this judgment.

On 4 March 2003 the Court of Appeal of the Autonomous Republic of Crimea (hereafter “the Court of Appeal”) upheld the applicant ' s conviction and sentence.

The applicant subsequently filed an appeal in cassation, in which he challenged the allegedly erroneous assessment of evidence by the trial and appellate courts. He did not raise any complaint as to his interrogation without a lawyer during police custody, the alleged lack of impartiality of the trial judges and allegedly unreasonable refusal of the trial court to appoint his father as his representative. Nor did the applicant file a request under Article 391 of the Code of Criminal Procedure to attend the hearing before the Supreme Court.

On 16 October 2003 the Supreme Court, in the absence of the applicant and his lawyer, but in the presence of the prosecutor, dismissed the applicant ' s appeal in cassation and upheld the decisions of the lower courts.

2. Alleged ill-treatment

(a) Events of 14-18 March 2001

After his arrest the applicant was taken into police custody at Simferopol District Police Station ( Симферопольский районный отдел внутренних дел , hereafter “the Police Station”).

The applicant submits that during his stay in the Police Station from 14 to 18 March 2001 he was repeatedly beaten by several police officers, including officers F. and K., who were trying to coerce him to confess to the offence he was suspected of having committed. He also states that during this period he was, on a number of occasions, unreasonably handcuffed for several hours.

On 18 March 2001 the applicant was brought before the prosecutor, to whom he complained about the ill-treatment.

On the same day the applicant, accompanied by two police officers, was taken to Simferopol City Hospital no. 6 (hereafter “Hospital no. 6”), where a doctor treated injuries to his face. The doctor, however, refused to issue a certificate describing the applicant ' s physical state, which was necessary for his admission to the Simferopol City Temporary Detention Centre ( Ізолятор тимчасового утримання , hereafter “the Simferopol ITU”). Faced with this refusal, the officers took the applicant to Semashko Central Hospital . During his examination there the applicant complained about blood oozing from his right ear. The medical certificate issued by a doctor of Semashko Central Hospital stated that the applicant had sustained various injuries to his face. After the applicant ' s examination in the hospital, he was admitted to the Simferopol ITU.

(b) Investigations into the alleged ill-treatment

On 19 March 2001 the applicant was examined by an expert with the Crimean Bureau of Forensic Medical Examinations ( Крымское республиканское бюро СМЭ ) . During the examination the applicant stated he had sustained injuries on account of police violence. The expert ' s report contained, inter alia , the following conclusions:

“[the applicant] has sustained the following injuries: bruises on the lower eyelids of both eyes and on the left ear, abrasions on the right temple and the lower lip and an injury to the acoustic meatus. ...

The [said] injuries were caused by blunt objects with limited impact surface, in this case possibly fists, booted legs...”

On 29 March 2001 another expert with the Crimean Bureau of Forensic Medical Examinations examined the applicant and did not find any injuries to his face or signs of healed injuries.

By letters of 29 and 30 May 2001 the Crimean Police Department informed the applicant ' s father that the internal inquiry had not found any wrongdoing on the part of the police officers concerned.

On 14 July 2001 the applicant complained in writing to the Head of the Internal Security Unit of the Crimean Police Department that, following his arrest, he had been ill-treated and coerced to confess by police officers, including officer F. It appears that no reply was received to this complaint. It further appears that the applicant and his father lodged numerous similar complaints with various police officials and prosecutor ' s offices.

On 5 November 2002, after convicting the applicant and his three co-defendants, the Zheleznodorozhny Court issued a separate ruling, noting that during the trial proceedings it had been established that the defendants had not had any injuries when arrested and that the applicant, Mr S and Mr Sh. had sustained injuries while in police custody. The court “brought to the attention” of the Prosecutor of the Autonomous Republic of Crimea the injuries sustained by the three defendants during pre-trial proceedings and suggested that the culprits be identified and punished ( « привлечении виновных лиц к ответственности » ).

On 22 November 2002 an investigator with the Prosecutor ' s Office of the Autonomous Republic of Crimea (hereafter “the POARC”), having questioned Mr S., Mr Sh. and several police officers from the Police Station found no evidence of any wrongdoing on the part of the officers and decided not to institute criminal proceedings against them. The applicant appealed, stating that the preliminary inquiry had been insufficient. In particular he referred to the fact that he had not been questioned in the course of the inquiry.

On 25 February 2003 the Tsentralyy District Court of Simferopol (hereafter “the Tsentralyy Court ”) allowed the applicant ' s appeal and quashed the investigator ' s decision. The court indicated, inter alia , that the decision merely stated that the officers concerned had not inflicted any bodily harm on the victims and that no attempt had been made to establish the circumstances in which the applicant, Mr S. and Mr Sh. had sustained their injuries.

In the context of the additional inquiry the investigator with the POARC questioned:

- the applicant, Mr S. and Mr Sh., all of whom claimed that they had been subjected to police violence; Mr S. also claimed to have seen the applicant being escorted by police officers from the interrogation room with bruises on his face;

- nine police officers from the Police Station, including officers F. and K., who stated that the applicant had not been subjected to any ill ‑ treatment;

- a witness Mr P., who stated that in March 2001 he had shared a cell with a young man of Tatar origin, whose name he did not remember – he had seen this man being taken away by the police for interviews and being brought back without any signs of ill-treatment on his face, and he also claimed to have seen this man hitting his head against the wall, thus causing damage to his face and ear;

- two doctors from Hospital no. 6, who had treated the applicant on 18 March 2001 and according to whom the applicant had been brought to the hospital by police officers who said that he had fallen on something hard;

- two officers of the Simferopol IVS, who did not remember if the applicant had had any injuries upon his admission, but stated that he had not raised any complaints regarding his state of health;

- the applicant ' s aunt Mrs M., who had visited him in the Simferopol IVS on 27 March 2001 and who had seen injuries to his face.

On the basis of the above statements, on 27 March 2003 the investigator concluded that the applicant ' s injuries were self-inflicted and decided not to institute criminal proceedings against the police officers. The applicant lodged an appeal against this decision.

On 7 May 2003 the Tsentralyy Court quashed the investigator ' s decision of 27 March 2003, holding that the inquiry had been insufficient. In particular, the investigator

- had failed to establish whether the applicant had hit the wall himself or had been made to hit the wall by others;

- had closed the case against the police officers, whereas the offence as such, committed by unknown persons, was still open for investigation;

- had failed to explain the inconsistency of his conclusion with the medical expert ' s report, which stated that the injuries had been caused by blunt objects with a limited impact surface, whereas the wall, having a flat surface, could not be regarded as such an object;

- had failed to carry out an on-site examination.

On 19 May 2003 the POARC instituted criminal proceedings concerning the applicant ' s complaints and transmitted the case to the Zheleznodorozhny District Prosecutor ' s Office for investigation.

On 20 November 2003 the investigator with the Zheleznodorozhny District Prosecutor ' s Office decided to discontinue the criminal proceedings concerning the alleged abuse of power by the police officers as there was no evidence of any ill ‑ treatment. This decision was based on:

- the evidence of officers from the Police Station, including F. and K., a doctor from Hospital no. 6 and the three alleged victims, all of whom had repeated their statements given at previous stages;

- the statements of two experts who had examined the applicant on 19 and 29 March 2001 (neither of them remembered anything related to the case and referred to their respective reports);

- the results of the confrontations between the applicant and officers F. and K., on which occasions the applicant and the officers had repeated their previous statements.

The investigator in his decision did not address the questions of when, where and in what circumstances the applicant had sustained the injuries recorded by the expert on 19 March 2001, nor was any reference made to the evidence of Mr P., the applicant ' s alleged cell-mate. The applicant ' s father, acting as a representative of the applicant in these proceedings, lodged an appeal against this decision.

On 23 March 2004 the Zheleznodorozhny Court dismissed the applicant ' s appeal, finding that the investigation had been sufficient. The applicant ' s father appealed.

On 27 April 2004 the Court of Appeal, following a hearing held in the absence of the applicant and his representative, upheld the Zheleznodorozhny Court ' s decision of 23 March 2004.

The applicant ' s father lodged an appeal in cassation, stating, inter alia , that he had not been duly summoned to attend the hearing before the Court of Appeal.

On 20 January 2005 the Supreme Court quashed the decision of the Court of Appeal and remitted the case for a new appellate hearing, finding that the applicant ' s representative had not been properly served with a summons.

On 26 April 2005 the Court of Appeal re-examined the appeal of the applicant ' s father in his presence and rejected it as unsubstantiated. His appeal in cassation was dismissed by the Su preme Court on 17 November 2005.

B. Relevant domestic law

Article 390 of the Code of Criminal Procedure, in so far as relevant, reads as follows:

“Before the beginning of the examination of the case in the cassation court the party, who has filed a [cassation] appeal...are entitled to amend change or withdraw it ...”

Article 391 of the Code of Criminal Procedure provides the following:

The hearing before the court of cassation instance, which is being held in presence of the prosecutor, may be attended by [the convicted or acquitted persons, their representatives, civil parties and their representatives]. If need be, the court can invite these persons to attend the hearing to give statements. The motion of a convicted person, who is being held in detention, to be brought to the cassation hearing is obligatory for the court of cassation instance.

The parties to the proceedings, who appeared in before the court are allowed to make submissions.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody and that the authorities had failed to comply with their positive obligation under that Article to carry out an effective investigation . In this latter respect he also relied on Article 13 of the Convention.

The applicant complained under Article 6 of the Convention that he had been denied a fair trial, in that the trial court had erred in its assessment of the evidence, that he had not been provided with a lawyer to assist him during the initial interviews at the Police Station, that his father had not been allowed to represent him during the trial proceedings and that the trial judges were biased. The applicant also contended that the proceedings before the Supreme Court to examine his appeal in cassation against his conviction had not respected the principle of equality of arms and his right to be present at his trial .

In his letter of 19 July 2006 the applicant also referred to Article 5 of the Convention, stating that his detention at the Police Station had been unlawful, and relied on Article 17 of the Convention without any further reasoning.

THE LAW

1. The applicant ' s alleged ill-treatment by the police

The applicant complained that he had been beaten up by police officers during his detention at the Simferopol District Police Station and that the State authorities had failed to undertake an effective investigation. He relied on Article 3 of the Convention, which reads as follows:

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

The applicant further complained that, in respect of his complaints of ill ‑ treatment under Article 3, he did not have at his disposal effective domestic remedies, as required by Article 13 of the Convention which provides 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.”

The Court considers that it cannot, on the basis of the case file, de termine the admissibility of the s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. Right to be present at the hearing before the Supreme Court

The applicant complained that, in breach of the principle of equality of arms, neither he nor his lawyer had been invited to participate in the cassation hearing, whereas the prosecutor had been present at the hearing and made submissions to the Supreme Court. This also was contrary to his right to be present at his trial. The applicant invokes Article 6 § 1 of the Convention, which, in so far as relevant provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law ... ”

The Court notes that Article 391 of the Code of Criminal Procedure provides that the defendant and his representative are allowed to attend a cassation hearing. The relevant request of an imprisoned defendant is obligatory for the Supreme Court. In practice such requests are usually made by defendants and/or their lawyers in the text of their cassation appeals. Moreover, until very shortly before the beginning of the hearing the applicant retained a possibility to file amendments to his cassation appeal, in which he could express his wish to be present as the hearing (see Relevant domestic law above). There is no indication that any of these avenues was used in the present case.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Remainder of the complaints

The Court has examined the remainder of the applicant ' s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints under Articles 3 and 13 of the Convention ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President