Communicated on 6 June 2016

FIFTH SECTION

Application no. 48353/09 Andrey Borisovich DROBOTENKO against Ukraine lodged on 3 September 2009

STATEMENT OF FACTS

The applicant, Mr Andrey Borisovich Drobotenko , is an Ukrainian national, who was born in 1957. He is represented before the Court by Mr A.A. Kristenko , a lawyer practising in Kharkiv .

A. The applicant ’ s alleged ill-treatment and his pre-trial detention

On 5 March 2009 the applicant was arrested by the police on the street for a breach of public order.

Later that day he was taken by three police officers to the Skadovsk Town Hospital (“ Skadovsk Hospital”). He was diagnosed with alcohol intoxication, a closed head injury, grade 2 concussion, hypertension and extensive bruising to his head, body and face.

According to the applicant, he was beaten by the officers while in the police car.

Official documents suggest that after his arrest on 5 March 2009, the applicant was taken to a hospital for a medical check-up as he had denied being drunk. In the police car he attempted to kill the driver with a knife and threatened the other officers, who caused bodily injuries to the applicant in self-defence.

The applicant underwent inpatient treatment for his injuries at Skadovsk Hospital until 7 March 2009, when he was discharged at the police ’ s request.

From 7 to 17 March 2009 the applicant was detained in a temporary detention facility ( ізолятор тимчасового тримання  “the ITT”).

On 17 March 2009 the Skadovsk Town Court ordered the applicant ’ s detention as a preventive measure in the context of the criminal proceedings against him (see below).

From 18 March to 2 October 2012 he was detained in Kherson Pre-trial Detention Centre no. 28 ( слідчий ізолятор  “Kherson SIZO”) .

According to the applicant, the cell he had been detained in was designed to hold twenty-five detainees but had actually been occupied by thirty-five to forty at a time. Food at the facility had been of poor quality and detainees had only been allowed an hour ’ s walk in a small yard.

On 2 October 2012 the applicant was released from Kherson SIZO as the preventive measure applied to him had been changed to a written undertaking not to abscond.

B. Criminal proceedings against the applicant

On 6 March 2009 criminal proceedings were instituted against the applicant for the attempted murder of a police officer on 5 March 2005.

16 March 2009 the relevant charges were brought against the applicant.

On 3 September 2010 the Court of Appeal of the Kherson Region found the applicant guilty as charged. It dismissed his allegations of ill-treatment, finding that he had been beaten in response to his unlawful behaviour and that there had therefore been no corpus delicti in the police officers ’ actions. The court further referred to a prosecutor ’ s refusal to institute criminal proceedings against the police officers, noting that it had not been appealed against by the applicant (see below).

On 2 October 2012 the Higher Specialised Court of Ukraine for Civil and Criminal Matters quashed that judgment and sent the case back to the prosecutor ’ s office for a new investigation. The preventive measure applied to the applicant was changed from detention to a written undertaking not to abscond.

The Court has not been informed of the outcome of these proceedings, if any.

C. Criminal complaints against police officers

On 9 and 11 March 2009 the applicant ’ s lawyer complained to the prosecutor ’ s office that the applicant had been beaten by three police officers on 5 March 2009.

On 13 March 2009 the prosecutor ’ s office informed the applicant by letter that criminal proceedings would not be opened against the police officers as the facts alleged by the applicant did not appear to have been confirmed in the course of an inquiry.

On 26 March 2009 the prosecutor informed the applicant, again by letter, that a legal assessment of the police officers ’ behaviour would be carried out in the course of the applicant ’ s criminal trial.

On the same date the prosecutor ’ s office refused to institute criminal proceedings against the police officers, finding that they had acted in self-defence and had not overstepped what had been necessary in the circumstances, given that the applicant had been carrying a knife. The applicant ’ s lawyer appealed against that decision to a court but on 3 July 2009 his appeal was eventually dismissed as time-barred.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by the police on 5 March 2003, and that the authorities failed to conduct an effective investigation in that respect.

He further complains under Articles 3 and 13 of the Convention of poor conditions of detention in Kherson SIZO and a lack of effective domestic remedies in that regard.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or inhuman or degrading treatment by the police on 5 March 2009, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Were the general conditions of the applicant ’ s detention in the Kherson Pre-Trial Detention Centre compatible with Article 3 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints about the conditions of his detention, as required by Article 13 of the Convention?

The Government are requested to submit all the documents relating to the investigation of the applicant ’ s allegations that he was ill-treated by the police.