FIFTH SECTION

DECISION

Application no. 65117/11 Vyacheslav Vasylyovych OLIYEVSKYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 14 January 2020 as a Committee composed of:

Yonko Grozev, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 17 October 2011,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The case originated in an application (no. 65117/11) against Ukraine introduced on 17 October 2011 on behalf of Mr Vyacheslav Vasyliovych Oliyevskyy, a Ukrainian national born in 1985 (“the applicant”), by his mother, Mrs P.Y. Oliyevska, acting without power of attorney.

2 . On 1 November 2011 the applicant signed a power of attorney authorising Ms G.V. Nazarova, a lawyer practicing in Chernivtsi, to represent him before the Court.

3 . On 21 December 2011 the Court received an application form completed by Mrs Nazarova on the applicant ’ s behalf and signed by herself and the applicant ’ s mother.

4 . The complaints included in the application form concerned, in particular, the applicant ’ s alleged ill-treatment in custody with a view to obtaining self-incriminating statements concerning his participation in a series of thefts and robberies, lack of effective domestic investigation of the relevant complaints lodged by the applicant ’ s mother on his behalf, as well as lawfulness and length of the applicant ’ s arrest and pre-trial detention. It was apparent from the presented material that the applicant, who had no prior history of psychiatric disorders, was arrested in April 2011, pleaded guilty to the incriminated thefts and robberies and remanded in custody pending investigation of his case. It was further evident that on 29 June 2011 he was diagnosed with acute phase of polymorphic psychotic disorder. In addition, it was apparent that neither the applicant himself, nor the lawyers who were representing him in the domestic proceedings filed any complaints concerning his alleged ill-treatment or other matters relevant to his detention. On the other hand, the applicant ’ s mother acting as his “lay defender” in the domestic criminal proceedings, raised such complaints alleging that deterioration of the applicant ’ s mental state had been the result of tortures he had suffered in detention.

5 . On 25 January 2012 a board of experts with the Lviv regional psychiatric hospital, having conducted the applicant ’ s in-patient psychiatric assessment, concluded that at the material time he was suffering from an acute phase of the chronic schizophrenic disorder, which made him unable to understand or control his actions and necessitated in-patient treatment in a psychiatric facility. It is evident from the record of the applicant ’ s interviews with the experts that he did not raise any ill-treatment complaints during those interviews.

6 . In April 2012 criminal proceedings against the applicant were suspended in view of the deterioration of his mental state.

7 . On 31 July 2012 a board of experts with the Kyiv city forensic psychiatric centre carried out another in-patient assessment of the applicant ’ s mental state and arrived conclusions similar to those made by their colleagues during the previous assessment. Additionally, it noted that while the applicant ’ s disorder had first manifested itself in June 2011, that is, after he had been remanded in custody, nothing in the applicant ’ s personal statements, his medical file or other material indicated that the deterioration of his mental state could have been caused by his arrest or detention.

8 . On 19 November 2012 the Kitsmanskyy District Court ordered the applicant ’ s placement in a psychiatric clinic for compulsory treatment.

9 . On 8 May 2014 a board of experts with the Chernivtsi regional psychiatric hospital, where the applicant was placed for treatment, concluded that the applicant had achieved the state of a prolonged and stable remission. Accordingly, the chief doctor requested the court to release the applicant from the hospital.

10 . On 16 May 2014 the Shevchenkivskyy District Court in Chernivtsi allowed this request.

11 . On 20 August 2014 the criminal proceedings against the applicant were renewed in view of the improvement of his health.

12 . On 22 October 2014 the Kitsmanskyy District Court, following a hearing during which the applicant pleaded guilty to the charges against him, convicted him of several charges, sentenced him to five years ’ imprisonment and released him from serving the sentence on two-years ’ probation.

13 . On 1 December 2014 notice of the complaints under Articles 3 and 5 §§ 1 and 3 of the Convention filed on the applicant ’ s behalf was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

14 . In their observations, the Government informed the Court, in particular, that the judgment of 22 October 2014 had been appealed against by both parties. However, the appeal court had not examined the case on the merits as the applicant had repeatedly failed to appear for the appeal hearings and had eventually been placed on the wanted list. The Government further argued that the applicant ’ s complaint under Article 3 of the Convention was manifestly ill-founded, as there had been no evidence that he had suffered any physical injuries during detention, while his complaint under Article 5 § 1 was inadmissible for non-exhaustion of domestic remedies. The Government presented a copy of the applicant ’ s medical record, from which it was apparent that he had been examined by medical professionals upon his placement in custody and regularly thereafter. It was also evident from that record that no injuries had ever been detected on the applicant ’ s body and that prior to his sudden psychotic fit of 29 June 2011 he had filed no health-related complaints.

15 . In reply to those observations, the applicant ’ s designated lawyer Mrs Nazarova informed the Court that she was not able to provide any comments on the applicant ’ s behalf in response to the Government ’ s observations as she was not aware of the applicant ’ s whereabouts. However, she presented just satisfaction claims formulated on the applicant ’ s behalf by his mother. Mrs Nazarova also informed the Court that the applicant ’ s mother had unsuccessfully attempted to obtain legal custody of her son in view of his psychiatric disorder.

THE LAW

16 . The Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular situation and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 35, 17 November 2016, with further references).

17 . In the present case the Court observes that the applicant signed a power of attorney authorising Mrs Nazarova to file an application on his behalf. However, he did not maintain contact with her and failed to keep her informed of his whereabouts or to provide her with another means of contacting him. It would appear in the present case that the last time the applicant and his lawyer were in contact was on a date prior to the communication of the case to the respondent Government and that the applicant is unaware of the content of the observations submitted by them in his case. In these circumstances the Court finds that the applicant ’ s representative cannot now meaningfully pursue the proceedings before it, in the absence of instructions from her client (see V.M. and Others , cited above, §§ 36-37 with further references).

18 . The Court further notes that in the present case the applicant ’ s instructions to his lawyer following communication of the case would have been all the more important since the aforementioned power of attorney was signed by him on 1 November 2011. At that time he was apparently suffering from an acute stage of a mental disorder, which could impede his ability to give her meaningful instructions and which has subsequently been successfully treated (see paragraphs 4, 5 and 9 above).

19 . It is also notable that this power of attorney remains the only document in the file which bears the applicant ’ s signature. The introduction letter was filed by the applicant ’ s mother, who also signed the ensuing application form and formulated just satisfaction claims on the applicant ’ s behalf. However, the applicant ’ s mother has neither obtained a power of attorney from the applicant to make any submissions on his behalf before the Court, nor obtained statutory custody over him at the domestic level.

20 . It is further observed that, based on the available material, it was only the applicant ’ s mother who raised complaints concerning his alleged ill-treatment before the domestic authorities. The applicant himself raised no such complaints at any stage and before any authority, including during his interviews with medical professionals in the course of his psychiatric assessments.

21 . In the light of the foregoing, the Court considers that it lacks elements necessary for it to conclude that the applicant is interested in pursuing the present application.

22 . Regard being had to the facts of the present case, the Court likewise finds no special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, which would justify continued examination of the application in the absence of such manifested interest on the applicant ’ s behalf.

23 . In view of the above, in accordance with Article 37 § 1 (a) of the Con vention, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 6 February 2020 .

Milan Blaško Yonko Grozev Deputy Registrar President