Communicated on 3 December 2015

FIFTH SECTION

Application no. 54938/10 Eduard Nikolayevich BOZHKO against Ukraine lodged on 15 March 2011

STATEMENT OF FACTS

The applicant, Mr Eduard Nikolayevich Bozhko , is a Ukrainian national, who was born in 1962 and is detained in Kyiv.

The circumstances of the case

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

On 27 October 2009, at about 11.30 p.m., the applicant was arrested by the police on suspicion of murder.

On 28 October 2009, at 6.40 p.m., a police investigator drew up a report, in which he stated that the applicant ’ s arrest had taken place at 6.30 p.m. on that date on the premises of a police station.

According to the applicant, during the nineteen hours of his unreported detention he was subjected to beatings and psychological pressure. He submits in this connection that the criminal file contains some photographs of him with visible bruising on his face.

The applicant lodged numerous complaints with the prosecution and other authorities regarding his unacknowledged detention and ill-treatment by the police.

On 9 March 2010 the Kyiv City Court of Appeal (“the Kyiv Court”), sitting as a court of first instance, held a preparatory hearing for the trial. It instructed the investigation to take some additional measures with a view, in particular, to identifying the victim and investigating the applicant ’ s allegation of ill-treatment. The court also decided to keep the applicant in pre-trial detention given the seriousness of the charges against him, his criminal convictions in the past, his lack of a fixed residence and the lack of any stable income.

On 7 April 2010 the Dniprovskyy district prosecutor ’ s office (“the Dniprovskyy prosecutor ’ s office”) refused to open a criminal case in respect of the investigator in charge of the applicant ’ s case. The applicant challenged that ruling before the domestic courts, but without success.

On 8 June 2010 the Kyiv Court rejected the applicant ’ s request to return the case file to the police for additional investigation. At the same time, it instructed the prosecution authorities once again to take some additional investigative measures and to respond to the applicant ’ s allegation of ill-treatment. The court noted that its previous instructions in this connection had not been complied with.

On 13 October 2010 the Kyiv Court issued a ruling in which it pointed out some serious shortcomings and stark contradictions in the case file. It further noted that its earlier instructions (of 9 March and 8 June 2010) had not been complied with and that the applicant ’ s complaint of ill-treatment had not been investigated.

On 29 December 2011 the Kyiv Dniprovskyy District Court (“the Dniprovskyy Court”) allowed in part the applicant ’ s complaint regarding the lack of an adequate investigation into his ill-treatment allegation. It noted that the prosecutor ’ s ruling of 7 April 2010 concerned only the investigator, whereas the applicant ’ s complaint had also targeted other police officers. Accordingly, the court instructed the Dniprovskyy prosecutor ’ s office to duly examine the applicant ’ s complaints. It appears, however, that the impugned ruling of 7 April 2010 was not quashed.

On 14 May 2012 the Kyiv Court wrote to the city prosecutor that its earlier instructions to investigate the applicant ’ s ill-treatment complaint had not been followed up on. The judge noted that the applicant, as well as the other co-accused, had not been questioned in connection with the complaint. Furthermore, the veracity of the applicant ’ s ill-treatment allegation had been confirmed to a certain extent in the course of the court hearings. Lastly, the pre-trial investigation in his criminal case had been of very poor quality.

It appears that on 1 June 2012 the Dniprovskyy prosecutor ’ s office issued another ruling refusing to open a criminal case against the police officers (with no further details available).

On 19 November 2012 the Kyiv Court returned the case to the police for additional pre-trial investigation.

It appears that during the entire period of his pre-trial detention the applicant was held in the Kyiv Pre-Trial Detention Centre (“the SIZO”). According to the applicant, the conditions of his detention there were inadequate. As someone with a history of tuberculosis, he was placed in a cell of 6 by 10 m designated for tuberculosis-infected inmates at the recovery stage, which he shared with some thirty to thirty-eight others.

COMPLAINTS

The applicant complains under Article 3 of the Convention of his ill-treatment by the police and the lack of an effective domestic investigation into the matter. He also complains under the same provision of the conditions of his detention in the SIZO.

The applicant further complains, under Article 5 § 1 of the Convention, that his initial detention for nineteen hours was not documented. He next complains, under Article 5 § 3 of the Convention, about the length of his pre-trial detention.

Lastly, relying on Article 6 § 1, the applicant also complains about the length of the criminal proceedings against him.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

2 . Having regard to the procedural protection from torture or inhuman or degrading treatment or punishment (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 . Did the conditions of the applicant ’ s detention in the Kyiv SIZO comply with the requirements of Article 3 of the Convention?

4. Was the applicant deprived of his liberty on 27 and 28 October 2009 in breach of Article 5 § 1 of the Convention? The Government are invited to comment, in particular, on the applicant ’ s allegation that his initial detention for nineteen hours was not documented.

5. Was the applicant ’ s pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?

6. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Government are invited to submit to the Court all relevant documents concerning the above issues.