Communicated on 6 October 2015

FIFTH SECTION

Application no. 41415/13 Stanislav Fedorovych OLIYNYK against Ukraine lodged on 14 June 2013

STATEMENT OF FACTS

The applicant, Mr Stanislav Fedorovych Oliynyk , is a Ukrainian national, who was born in 1982 and lives in Dnipropetrovsk. He is represented before the Court by Mr S.M. Doroshenko , a lawyer practising in Dnipropetrovsk.

A. The circumstances of the case

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

On 7 April 2013 the applicant ’ s uncle Mr Ch. was found dead in his house. He had died as a result of a severe head injury (a skull fracture and intracerebral haemorrhage).

The investigation found out that the applicant had been seen drinking with the victim and having beaten him up in the evening on 6 April 2013.

As indicated in the summary of the police officers ’ statements provided in the prosecutor ’ s ruling of 21 June 2013 (see below), at about 9 p.m. on 10 April 2013 a senior official of the Dnipropetrovsk city police department decided that the applicant should be brought to the police station for questioning.

On 11 April 2013, at about 6.30 a.m., the applicant was taken by a police car from his home to the police station. He did not object.

The applicant ’ s arrival at the police station and his stay there till 7.20 p.m. (see below) remained undocumented. As explained by the police in the course of the investigation into the applicant ’ s ill-treatment complaint, this was due to the fact that his arrival had coincided with the shifts ’ take-over when all the record books had been on the chief ’ s desk. The police officers also subsequently explained that, as a matter of coincidence, on 11 April 2013 the video cameras on the ground floor and the first floor, where the applicant was held, were out of order.

According to the applicant, it was suggested to him to confess to having inflicted the fatal injuries on Mr Ch., but he refused. Thereafter he was allegedly taken to a different room, where four police officers beat him up. More specifically, the applicant alleges that they were punching him on his head and torso for about an hour. The applicant succumbed and confessed. The report of his questioning as a suspect does not specify the time when he was questioned. It contains a note that the applicant waived his right to legal assistance.

At 6.07 p.m. on 11 April 2013 the applicant was formally notified of the suspicion against him (see the “Relevant domestic law” section below).

From 6.15 p.m. to 7 p.m. the investigator carried out the crime reconstruction with the applicant ’ s participation. The applicant did not, however, sign the report to that effect.

At 7.20 p.m. on that day the applicant ’ s arrest was documented. As it follows from the arrest report, the applicant still had no lawyer.

On 12 April 2013 the investigator applied to the investigating judge for the applicant ’ s pre-trial detention as a preventive measure pending trial. As noted in the application, there was a reasonable suspicion that the applicant had committed the offence in question, and the possible penalty for it was a term of imprisonment of over seven years. The investigator also noted that the applicant was unemployed and lived at an address different from his official domicile. Furthermore, it was considered that he might abscond if at liberty given that he had left the crime scene. The application also mentioned that the applicant was married, had three minor children and no criminal record in the past.

On the same day the investigating judge allowed the aforementioned application and ordered the applican t ’ s pre-trial detention till 10 June 2013. The judge further held that the applicant would be released if he put up bail in the amount of 80,000 Ukrainian hryvnias (at the time equal to about 7,400 euros).

On 17 April 2013 t he applicant (at that stage represented by a lawyer of his choice, Mr Doroshenko , who is now representing him in the proceedings before the Court) appealed submitting that in ordering his detention the investigating judge had not taken into account his personal circumstances, namely, the fact that he was well integrated socially, had had no criminal record and had three small children to take care of. The applicant further contended that there was no evidence showing the risk of his absconding. He noted that his confession had been extracted by ill-treatment and psychological pressure, and that there were witnesses who could confirm his alibi. Lastly, he complained that the bail amount was excessive making his release on bail unrealistic.

On 19 April 2013 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) rejected the applicant ’ s appeal. It found that the detention order was compliant with the criminal procedural legislation.

On 29 April 2013 the applicant requested the Dnipropetrovsk City Court (“the City Court”) to release him subject to an undertaking not to abscond. He submitted, in addition to his earlier arguments, that the witnesses who had ostensibly seen him beating up the victim had lied pursuing their own interests and that there were other witnesses who could confirm his alibi.

On 30 April 2013 the applicant ’ s father complained to the Dnipropetrovsk Regional Prosecutor ’ s Office that the applicant had been ill-treated by the police following his arrest on 11 April 2013. More specifically, four police officers had allegedly beaten him up with a view to coercing him into confessing to the incriminated crime. Thereafter, one police officer had handed him a glass of water allegedly containing some psychotropic substance rendering the applicant weak and sleepy. In substantiation of his allegations the applicant ’ s father referred to the video record of the crime reconstruction of 11 April 2013. According to him, it showed that the applicant had been barely conscious and had had to lean against various objects not to fall. Nor had he been able to write or put his signature in the crime reconstruction report. The applicant ’ s father also alleged that the investigator had tried to extort a bribe from him in exchange of the applicant ’ s release.

On 2 May 2013 an entry was made in the Unified Register of Pre-Trial Investigations in respect of the above complaints, marking the beginning of the investigation.

On 14 May 2013 the applicant himself complained to the City Court about his ill-treatment.

On the same day the City Court rejected the applicant ’ s request for release. It noted that that issue had already been duly examined when the preventive measure in respect of the applicant had been chosen.

On 5 June 2013 the investigator applied to the investigating judge for the extension of the applicant ’ s pre-trial detention to three months. He explained it by the necessity to carry out some additional investigating measures.

The applicant submitted his objections to the aforementioned application.

According to him, it had never been established why any less intrusive preventive measure would have been insufficient in his case.

On 10 June 2013 the Dnipropetrovsk City Court allowed the investigator ’ s application and upheld its reasoning. As regards the applicant ’ s arguments in favour of his release, the court noted that they had already been examined and dismissed when the preventive measure had been chosen. The applicant ’ s detentio n was therefore extended till 8 July 2013.

The applicant appealed. He submitted, in particular, that there had been no reassessment of the reasonableness of his continued detention with the passage of time.

On 14 June 2013 the Court of Appeal found against the applicant. It held that the initially identified risk of his absconding had not diminished with the passage of time. Furthermore, it stated that there were objective reasons for prolonging the investigation.

On 21 June 2013 the Dnipropetrovsk Regional Prosecutor ’ s Office terminated the criminal investigation into the applicant ’ s ill-treatment complaint on the ground that there was no indication of a criminal offence.

On 1 July 2013 the applicant was indicted.

On 5 July 2013 the City Court held a preparatory hearing before the trial. It rejected the applicant ’ s request for a replacement of his pre-trial detention by a house arrest. The court noted that the issue had already been examined before and that any less severe preventive measure would be insufficient given the seriousness of the charges against the applicant. The applicant ’ s pre-trial detention was extended to 5 September 2013.

On 19 August 2013 the applicant challenged the prosecutor ’ s ruling of 21 June 2013 on the termination of the criminal investigation into his allegation of ill-treatment. He submitted, in particular, that he had never been examined by a forensic medical expert with a view to establishing his injuries. According to him, one such injury, namely a bruise on his neck, was visible on the video record of the crime reconstruction of 11 April 2013, which had remained without assessment.

On 28 August 2013 the City Court quashed the impugned ruling of 21 June 2013 as based on an incomplete and superficial investigation. The court pointed out, in particular, the following omissions: there remained inconsistencies in the police officers ’ statements as regards the time when the applicant had been taken to the investigator (dealing with the applicant ’ s criminal case); the video record of the crime reconstruction of 11 April 2013 had not been assessed with a view to verifying the applicant ’ s submission that his injuries were visible on that video; the investigator (in charge of the investigation of the applicant ’ s ill-treatment complaint) had not requested the results of the applicant ’ s medical examination from the pre-trial detention centre; and the information that the video cameras in the police station had been out of order on 11 April 2013 had never been verified. Accordingly, the court ordered additional investigation into the matter.

On 4 September 2013 the City Court replaced the applicant ’ s pre-trial detention by a house arrest, with the reference to the Court ’ s case-law concerning the right to liberty.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure 2012 (as worded at the material time) read as follows:

“Article 42. A suspect and an accused.

“1. A suspect is the person who has been notified of suspicion against him/her as prescribed in Articles 276 to 279 of this Code, or the person who has been arrested on suspicion of having committed a criminal offence. ...

3. A suspect [...] shall have the following rights:

(1) to know of which criminal offence he/she is suspected [...];

(2) to be informed, expressly and promptly, of his/her rights as laid down in this Code and, where need be, to have those rights explained; ...

Article 176. General provisions on preventive measures

“1. Preventive measures are:

( 1) personal commitment;

( 2) personal warranty;

( 3) bail ;

( 4) house arrest; and

( 5) pre-trial detention.

2. Arrest of a person on the grounds and under the procedure defined by this Code is a provisional preventive measure.

3. The investigating judge or the court shall reject an application for a preventive measure if the investigator or the prosecutor does not prove the existence of sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal commitment, whereas the most severe one is a pre-trial detention.

4. Preventive measures shall be applied: during the investigation – by the investigating judge following an application from the investigator approved by the prosecutor or following such an application the prosecutor from himself; and during the trial – by the court following the prosecutor ’ s application to that effect.

Article 177 . Purpose and grounds for the application of preventive measures

1. The purpose of a preventive measure is to ensure the compliance of a suspect or an accused with the procedural obligations, as well as to prevent attempts to:

( 1) abscond from the pre-trial investigation authorities and/or the court;

( 2) destroy , conceal or spoil any of the objects or documents that have an essential importance for establishing the circumstances of the criminal offence;

( 3) exert an unlawful influence on the victim, the witnesses, or on other suspects, accused, the expert or the specialist in the same proceedings;

( 4) obstruct the criminal proceedings in any other way;

( 5) commit another criminal offence or continue the criminal offence of which he/she is suspected or accused.

2. A preventive measure shall be applied on the ground of a reasonable suspicion that the person has committed a criminal offence and subject to the existence of risks providing sufficient grounds for the investigating judge or the court to believe that the suspect, the accused or the convict can commit actions specified in part one of this Article. The investigator or the prosecutor may not apply for a preventive measure without grounds provided in this Code.

Article 178. Circumstances to be taken into account in choosing a preventive measure

1. When choosing a preventive measure, in addition to assessing the risks indicated in Article 177 of this Code, the investigating judge or the court must give a cumulative assessment to all the circumstances brought to his/her/its knowledge by the parties. These circumstances include the following:

( 1) the weight of the available evidence showing that the suspect or the accused has committed the criminal offence;

( 2) the severity of the potential penalty;

( 3) the age and the health condition of the suspect or the accused;

( 4) the level of the social integration of the suspect or the accused by the place of his/her permanent residence, including whether he/she has a family and dependants ;

( 5) whether the suspect or the accused has a permanent employment or studies;

( 6) the reputation of the suspect or the accused;

( 7) the property status of the suspect or the accused;

( 8) whether the suspect or the accused had criminal convictions in the past;

( 9) if a preventive measure was already applied to the suspect or the accused, whether he/she complied with it;

( 10) whether the person has been served a notice of suspicion in respect of another criminal offence; and

( 11) the amount of the pecuniary damage, of causing which the person is suspected or accused, or the amount of proceeds, which the person is suspected, or accused, to have received as a result of a criminal offence.

Article 183. Pre-trial detention

1. Pre-trial detention is an exceptional preventive measure applied exclusively if the prosecutor proves that none of the less strict preventive measures can prevent the risks specified in Article 177 of the present Code.

2. Pre-trial detention as a preventive measure shall not apply except as follows:

...

( 4) in respect of a person without a prior criminal conviction – if he/she is suspected of, or charged with, a criminal offence punishable by imprisonment of more than five years; ...

Article 207. Lawful arrest

1. Nobody may be arrested without a ruling of the investigating judge or the court, except for in cases envisaged in this Code. ...

Article 208. Arrest by a competent official

1. A competent official shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed, only in the following cases:

(1) if the person was caught whilst committing a crime or attempting to commit it; or

( 2) if immediately after a criminal offence the statements of an eye-witness, including the victim, or the totality of obvious signs on the body, clothes or the scene indicate that this individual has just committed the crime. ...

4. A competent official, who has carried out the arrest, shall immediately inform the arrested person, in an understandable language, of the grounds for the arrest and of the commission of what crime he/she is suspected. The official shall also explain to the arrested person his/her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] persons [...] of his/her arrest and whereabouts; to claim verification of the validity of the arrest; as well as the other procedural rights specified in this Code.

5. A report shall be drawn in respect of an individual ’ s arrest containing, [in particular,] the following information: the place, the date and the exact time (the hour with minutes) of the arrest according to Article 209 of this Code; the grounds for the arrest; results of the personal search; requests, statements or complaints of the arrested person, if any; and the comprehensive list of his/her procedural rights and duties. The arrest report shall be signed by the official, who drew it up, and by the arrested person. Its copy shall be immediately served on the arrested person against his/her signature [... ] .

Article 209. The moment of arrest

1. An individual is considered to be arrested if he/she is obliged, by coercion or by an order, to stay next to a competent official or in premises prescribed by a competent official.

Article 276. Cases in which a notification of suspicion is made

1. Notification of suspicion shall be made ... in the following cases:

( 1) if an individual is arrested in flagrante delicto or immediately after the commission of a criminal offence;

( 2) if one of the preventive measures is applied to an individual as prescribed in the present Code; [or]

( 3) if there is sufficient evidence to suspect a person of having committed a criminal offence. ...

2. ... the investigator, the prosecutor or other competent official (entitled to carry out the arrest) shall immediately advise the suspect of his/her rights under Article 42 of this Code.

3 . Once [this has been done], the investigator, the prosecutor or other competent official must explain to the suspect each of the aforementioned rights if requested.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by the police and that there has been no effective domestic investigation into the matter. He further complains, with the reference to Article 5 § 3 of the Convention, that his placement in police custody was unlawful and that his pre-trial detention was not based on sufficient and relevant reasons.

QUESTIONS TO THE PARTIES

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

2. Having regard to the procedural protection from torture, 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?

The Government are requested to provide copies of all the documents concerning the domestic investigation of the applicant ’ s ill-treatment allegation.

3. Was the applicant ’ s deprivation of liberty for the period of 11 April to 4 September 2013 in breach of Article 5 § 1 (c) of the Convention, regard being had to the time of the formalisation of his arrest and the reasonableness of the grounds given to justify his detention?

4. Was the applicant ’ s deprivation of liberty for the aforementioned period in breach of Article 5 § 3 of the Convention?