FIFTH SECTION

Application no. 18404/07 Valeriy Nikolayevich DOLGANIN against Ukraine lodged on 5 April 2007

STATEMENT OF FACTS

The applicant, Mr Valeriy Nikolayevich Dolganin , is a Ukrainian national, who was born in 1972 and lives in the city of Kharkiv , Ukraine.

A. The circumstances of the case

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

On 3 May 2005 the applicant was arrested at his home. According to the applicant, at 2:00 p.m. he was brought to a police station where he was handcuffed to a heater. At around 10:00 p.m. he was brought to the cabinet of an investigation officer. There he was put on the floor, his hands were handcuffed behind, he was beaten in his stomach, was put on a gas mask with air passage blocked and the cigarette smoke was blown into it. Such treatment continued for one hour and then the applicant was placed in a cell.

In the morning of 4 May 2005 the applicant was called an ambulance and transferred to a hospital. He was diagnosed with a blunt abdominal trauma. The applicant told the doctors that on 3 May 2005 he had fallen down.

On 4 May 2005 criminal proceedings were instituted against the applicant and two other persons for a robbery which had taken place on 12 April 2005.

On 4 May 2005 the applicant ’ s mother hired a lawyer, P.

On 5 May 2005 the applicant was discharged from the hospital. According to a medical certificate he was in a satisfactory condition. The applicant challenged this and said that he had been discharged on request of an investigation officer while he had needed surgery. On the same day the applicant underwent a forensic medical examination. It was noted that the applicant had no injuries. The copy of this conclusion is not available.

On the same day the applicant met with P., however, the applicant refused to be legally represented.

On 6 May 2005 the applicant was charged with robbery. On the same day the Ordzhonikidzhevskyy District Court ordered the applicant ’ s pre-trial detention.

On the same day the applicant was placed back to a hospital where he underwent surgery because of intestinal obstruction. The applicant told the doctors that on 3 May 2005 he had fallen down on a concrete block. The applicant ’ s condition was assessed as being of medium severity.

The applicant was discharged from the hospital on 13 May 2005. He was detained in the police station before being placed to a temporary detention centre on 16 May 2005.

On 2 March and 28 September 2006 the Ordzhonikidzevskyy District Prosecutor refused to institute criminal proceedings following the applicant ’ s complaints about ill-treatment. It was found that, according to the forensic medical examination of 5 May 2005, the applicant had had no injuries.

On 13 April 2007 the Ordzhonikidzevskyy District Court sentenced the applicant to seven years ’ imprisonment for one count of robbery. The applicant was represented by a lawyer. In respect of the applicant ’ s complaints about ill-treatment and breach of his right to defence the court referred to the medical conclusion of 5 May 2005 that the applicant had had no injuries and noted that the applicant himself had refused to be legally represented.

On 12 February 2009 the Kharkiv Regional Court of Appeal upheld this decision.

On 9 June and 29 July 2009 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

COMPLAINTS

The applicant complains under Article 3 of the Convention:

 that he was handcuffed to a heater in the police station and kept there for 6-7 hours without giving him any water and without access to a toilet;

 that he was tortured in the police station;

 that he was not provided with adequate medical assistance in detention;

 about conditions of his detention in the police station on 5-6 May and between 13 and 16 May 2005;

 about lack of effective investigation into his complaints about ill-treatment.

The applicant complains under Article 5 of the Convention that his detention between 3 and 5 May 2005, and after 13 April 2007 was unlawful, and that he was not released on medical grounds.

The applicant also invokes Articles 6 and 13 of the Convention. In particular, the applicant complains under Article 6 § 3 (c) of the Convention about breach of his right to defence and that he was convicted on the basis of his confession given under duress. He also complains about the length of the proceedings.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment upon his arrest, in breach of Article 3 of the Convention?

2. Having regard to procedural protection from 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. Was adequate medical treatment and assistance provided to the applicant in detention and was such treatment compatible with the requirements of Article 3 of the Convention? The parties are requested to produce copies of relevant medical documents.

4. Was the applicant deprived of his liberty on 3 May 2005 in breach of Article 5 § 1 of the Convention?