FIFTH SECTION

DECISION

Application no . 46101/07 Andrey Vladimirovich GAREV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 9 July 2013 as a Committee composed of:

Boštjan M. Zupančič , President, Angelika Nußberger , Helena Jäderblom , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 13 October 2007,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Andrey Vladimirovich Garev, is a Ukrainian national, who was born in 1966 and lives in Volnyansk He was represented before the Court by Mr P. M. Paskal, a lawyer practising in Zaporizhzhya.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, from the Ministry of Justice.

The circumstances of the case

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

1. The applicant ’ s ill-treatment and investigation into it

On 27 March 2004 the applicant was apprehended by the police. According to the applicant he did not resist but the police officers beat him.

On 31 March 2004, following his mother ’ s complaint, the applicant was referred by a prosecutor to a forensic medical expert who established bruises on the applicant ’ s forehead and his left ear and noted that the applicant probably had several broken ribs, but drew no conclusion in this respect.

On 6 August 2004 and on several further occasions the prosecutor refused to institute criminal proceedings into the applicant ’ s allegations of ill-treatment for lack of corpus delicti . It was argued that at the time of the arrest the applicant tried to escape and the police had to apply martial art techniques against him. The prosecutor also noted that the applicant sustained only minor injuries. Moreover, there was no confirmation that the applicant, apart from bruises, also had several broken ribs. As to medical treatment during the applicant ’ s pre-trial detention, the prosecutor noted that the officers had duly reacted to every health complaint raised by the applicant. The last decision to this end was given on 18 May 2009.

2. Criminal proceedings against the applicant

Following his arrest on 27 March 2004, the applicant was accused of storing and selling drugs as a part of an organised criminal group. Seven members of the group, including the applicant, stood trial in the Energodar Town Court of Zaporizhzhya. After several hearings in which all accused participated, on 22 September 2005 the court had to sever the criminal case against the applicant from that of his co-accused due to the applicant ’ s health problems.

On 17 November 2005 the court resumed the proceedings against the applicant and on 21 November 2005 the court found the applicant guilty on multiple counts of storing and selling drugs and sentenced him to ten years ’ imprisonment. The court based its findings on partial confessions of the applicant ’ s accomplices and testimonies of numerous witnesses given at the pre-trial stage.

On 5 July 2006 the Zaporizhzhya Regional Court of Appeal changed the judgment of 21 November 2005 and reduced the sentence to five and a half years ’ imprisonment. It found that the applicant ’ s involvement in some of the episodes of storing and selling drugs had not been proved and accordingly acquitted him in part. The court also found that the first instance court had rightly severed the proceedings against the applicant and that prior to that severance the applicant participated together with other co-accused in seven court hearings between March and September 2005 and he knew the position of his co-accused. Therefore, in the opinion of the appellate court, the first-instance court had rightly refused the applicant ’ s request for the presence of his accomplices, who had been already convicted, in the further court hearings. The court also noted that many witnesses, including three persons who had bought drugs from the applicant under instruction of the police, had not appeared and could not be located as they had moved out from their known places of residence.

On 10 May 2007 the Supreme Court upheld the decision of the court of appeal.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was beaten by the police. He further complains that he was unlawfully deprived of his liberty in violation of Article 5 § 1 of the Convention. He also complains under Article 6 of the Convention that the courts were biased and treated him as guilty in violation of the presumption of innocence principle. He finally complains that the trial was unfair given that not all of the witnesses had been questioned and he was not fit to stand trial and defend himself due to health problems.

THE LAW

On 22 January 2013 the Court received the following friendly settlement declaration from the Government:

“ I, Nazar Kulchytskyyy, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay ex gratia 10 000 euros to Mr Andriy Volodymyrovych Garev with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights .

The above sum, which is to cover any pecuniary and non-pecuniary damage, will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the dale of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 31 May 2013, the Court received a letter from the applicant ’ s lawyer dated 22 May 2013 informing the Court that the applicant had agreed to the terms of the Government ’ s declaration.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

In view of the above, 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 in accordance with Article 39 of the Convention.

Stephen Phillips Boštjan M. Zupančič Deputy Registrar President