Communicated on 11 February 2016

FIFTH SECTION

Application no. 19574/09 Yuriy Mykolayovych ZABOLOTNYY against Ukraine lodged on 10 March 2009

STATEMENT OF FACTS

1. The applicant, Mr Yuriy Mykolayovych Zabolotnyy , is a Ukrainian national who was born in 1973 and lives in Vinnytsya .

A. Circumstances of the case

1. Incident of 12 December and subsequent events

(a) The applicant ’ s account of events

2. On 12 December 2007 the applicant was driving his car and became involved in an argument with the driver of another vehicle. An hour later, four men approached the applicant outside a warehouse where he was conducting some business. One of the men stated that he was a police officer and requested that the applicant follow him to his car. When the applicant asked the men to come into the light inside the warehouse, they grabbed his arms and started twisting them. When other people appeared, after hearing the applicant ’ s cries, one of the men showed the bystanders a police identity card and informed them that the applicant was being apprehended. The applicant was taken to the vehicle, where he was beaten on the head and body. He was then taken to the premises of the regional Department for the Prevention of Organised Crime ( УБОЗ УМВС ) (“the Department”) where he was beaten again and threatened that he would be killed because of the incident on the road. As he had been beaten and was afraid for his life, the applicant signed a document that had been given to him by a senior police officer, in which the applicant acknowledged that he had physically assaulted the driver in question. He was then taken to the Leninsky District police station (“the police station”), where he was informed of his rights and allowed to see his wife.

3. On 13 December 2007 an ambulance was called to the police station and the applicant was taken to the neurological unit of the city hospital where he spent twenty-six days. He was diagnosed with a closed head injury and concussion.

4. On 8 January 2008, he was allowed to leave hospital, but was apprehended by police at the hospital building. Without having been informed of the reasons for his apprehension, he was taken to the Leninsky District Court of Vinnytsy a (“the District Court”), which convicted him in administrative proceedings of wilful disobedience to the orders of a police officer and sentenced him to three days ’ administrative detention. The decision was final and not amenable to appeal.

(b) The authorities ’ account of events

5. On 12 December 2007 Z. called the Department ’ s emergency number and informed the officer on duty that he had been assaulted by an unidentified driver and that the driver in question was about to drive past the Department. In order to deal with the complaint immediately, three police officers and Z. followed the applicant ’ s vehicle until it stopped at a warehouse. After approaching the applicant, Z. recognised him as the person who had assaulted and injured him. One police officer, having identified himself, requested that the applicant go to the police vehicle to explain the incident with Z. The applicant refused, uttered obscenities, and started to push the police officers, demanding that they leave the warehouse. The police officers used force to restrain the applicant. Two individuals, K. and G., approached the police officers after hearing the applicant ’ s cries and asked what was going on. On being informed that the applicant was being apprehended, G. advised him to stop resisting the police. To prevent further resistance, the police officers put handcuffs on the applicant and took him to the Department, where they questioned him about the incident with Z. In a written statement, the applicant admitted that he had behaved unlawfully towards Z. and the police officers. The applicant, with relevant accompanying documentation, was then transferred to the police station. On the same day, reports were drawn up on the applicant ’ s resisting arrest and on his being placed under administrative arrest and he was placed in a temporary detention cell.

6. On 13 December 2007, an ambulance was called for the applicant after he complained of feeling ill. He was diagnosed with a closed head injury and concussion and taken to the city hospital. The applicant informed the ambulance medics that he had been beaten by unidentified people. After an examination by a neurosurgeon, the applicant was diagnosed with an injury to the soft tissue of the head and was advised to have out-patient treatment.

2. Applicant ’ s complaint of ill-treatment by the police and investigation

7. On 17 December 2007 the applicant ’ s brother reported a crime to the prosecutor ’ s office ( заява про злочин ), stating that the applicant had been ill-treated by police officers on 12 December 2007 and that no steps had been taken to investigate the incident, despite the fact that the applicant had complained of having been beaten when he had been taken to hospital.

8. On 8 January 2008 the prosecutor ’ s office of the Vinnytsy a Region refused to institute criminal proceedings against the police officers owing to a lack of corpus delicti . It found that the police officers had injured the applicant while trying to restrain him. The prosecutor referred to the circumstances of the case, as described in paragraph 5 above, and noted that it had not been possible to question the applicant or conduct a forensic medical examination as he had been having treatment at the city hospital. He also referred to the decision of 8 January 2008 of the Leninsky District Court, which found the applicant guilty of willful disobedience to the orders of a police officer, and to the results of an internal inquiry by the Department, which had not revealed any breach of the law by the police officers.

9. The applicant appealed against the prosecutor ’ s decision.

10. On 27 February 2008 the District Court dismissed the applicant ’ s appeal, finding that the prosecutor ’ s decision had been based on a comprehensive and thorough inquiry. It also noted that, by virtue of the res judicat a character of the District Court ’ s decision of 8 January 2008, the applicant ’ s resistance to the police had become an established fact. A copy of the decision had allegedly been given to the applicant on 3 March 2008.

11. On 8 March 2008 the applicant appealed against the District Court ’ s decision of 27 February 2008.

12. On 9 April 2008 the District Court dismissed the applicant ’ s appeal as time-barred, finding that the applicant had missed the statutory seven-day deadline for appeals, and had failed to request an extension. That decision was upheld by the Vinnytsy a Regional Court of Appeal and the Supreme Court of Ukraine on 28 May and 14 October 2008 respectively.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that he was tortured by the police on 12 December 2007 and that there has been no effective investigation into his allegations. R elying on Article 6 § 1 of the Convention, h e further complains that he has had no possibility to appeal against the District Court ’ s judgment of 8 January 2008.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment on 12 December 2007, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from ill-treatment, was the investigation by the domestic authorities in breach of Article 3 of the Convention?

3. Was the applicant afforded a right of appeal against the decision of 8 January 2008, as guaranteed by Article 2 § 1 of Protocol No. 7?

4. Did the fact that the applicant was unable to appeal fall within the exceptions laid down by Article 2 § 2 of Protocol No. 7?