FIFTH SECTION

Application no. 25309/06 Dmitriy Aleksandrovich TERESHCHENKO against Ukraine lodged on 1 June 2006

STATEMENT OF FACTS

The applicant, Mr Dmitriy Aleksandrovich Tereshchenko , is a Ukrainian national, who was born in 1966 and is currently serving his sentence in prison.

A. The circumstances of the case

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

1. The incident of 31 March 2003 and ensuing criminal proceedings

In the evening of 31 March 2003 Zh ., a man of middle age, was beaten up by two persons in a street of Kerch town. He sustained grievous injuries to the head and died.

On 10 April 2003 an investigation was opened in connection with the incident.

On 4 May 2003 the applicant was arrested on suspicion of having been involved in the above incident but released two days later.

On 30 June 2004 the police arrested the applicant under Article 263 of the Administrative Offences Code for minor disorderly conduct which constituted an administrative offence. On that day the Kerch Town Court (“the first-instance court”) found the applicant guilty of that offence and imposed on him ten days of detention. Also on that day the applicant was allegedly beaten up by the police officers who tried to extract his confession to the crime against Zh . However, the applicant did not confess. He further requested to be provided with a doctor, but to no avail. He then complained of ill-treatment before the authorities (see below under the relevant subtitle).

On 9 July 2004 the investigator arrested the applicant as a suspect in the criminal case and charged him with the infliction of grievous bodily injuries on Zh . causing the latter ’ s death.

On the same day the applicant was confronted with P., a witness who claimed that immediately after the crime the applicant showed him a wooden truncheon and explained that he had just beaten up a man. During the confrontation the applicant insisted that he had a conflict with that witness and that the latter ’ s statements were slanderous. The record of the confrontation was signed by the applicant ’ s lawyer.

On 12 July 2004 a medical expert reported that the applicant sustained a bruise in the area of his left temple and an abrasion on his right wrist. The expert noted that those injuries were minor and could be caused by a blunt object between ten and fourteen days before the examination.

On the same day the first-instance court placed the applicant in custody.

On 22 August 2004 the investigator submitted material regarding the applicant ’ s alleged ill-treatment to the prosecutor for decision.

On an unspecified date the criminal case against the applicant was referred to the first-instance court for trial.

On 7 October 2004 the first-instance court remitted the case for additional investigation. It noted that important information was missing from the case-file, including the decision taken in respect of the applicant ’ s allegations of ill-treatment.

On 11 October 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) quashed as unfounded and unlawful the decision of 30 June 2004 by which the first-instance court found the applicant guilty of an administrative offence. The court noted that the case file did not contain sufficient evidence suggesting that the applicant had committed the offence.

On 16 November 2004 the Court of Appeal quashed the decision of 7 October 2004 taken by the first-instance court and ordered it to conduct the trial.

On 16 December 2004 the first-instance court again remitted the case for additional investigation noting that the applicant complained of ill-treatment while no material concerning the investigation of those allegations had been enclosed in the file.

On 10 February 2005 the applicant was released from custody under a written obligation not to abscond.

On 24 September 2005 the police officers arrested the applicant in a local bar for an administrative offence. The police officers allegedly beat him up at the police station. The applicant ’ s requests for medical examination were not allowed. An ambulance arrived several times to provide him with medical treatment. The applicant complained of ill-treatment before the domestic authorities (see below under the relevant subtitle).

On 26 September 2005 the first-instance court convicted the applicant of an administrative offence and sentenced him to ten days of detention. The applicant was released after having served that sentence.

On 18 November 2005 the first-instance court found that the applicant, together with an unknown person, inflicted grievous bodily injuries on Zh . causing the latter ’ s death. It sentenced the applicant to seven years and six months ’ imprisonment. The court further ordered that the applicant should be placed in custody pending further proceedings in the case.

On 20 December 2005 the Court of Appeal upheld that judgment.

On 25 July 2006 the Supreme Court partly allowed the applicant ’ s appeal and remitted the case for a new hearing before the Court of Appeal. It held that that court failed to give consideration to the applicant ’ s contentions as to the unfairness of the proceedings.

On 5 October 2006 the Court of Appeal considered the applicant ’ s case once again and upheld the applicant ’ s conviction. The applicant appealed in cassation.

On 7 August 2007 the Supreme Court partly allowed the applicant ’ s cassation appeal, quashed the Court of Appeal ’ s decision of 5 October 2006 and remitted the case for a fresh hearing before the Court of Appeal.

On 13 November 2007 the Court of Appeal remitted the case to the first-instance court for a fresh consideration noting, inter alia , that despite the applicant ’ s request the trial was not recorded by audio recording facilities.

On 10 April 2008 the first-instance court convicted the applicant of having inflicted on Zh . grievous bodily injuries causing the latter ’ s death and sentenced the applicant to seven years and six months ’ imprisonment. It further noted that a part of the sentence imposed on the applicant by another judgment for a crime committed in 1999 had not been served by him and had to be added to the present sentence. The court therefore concluded that the overall sentence amounted to eight years of imprisonment. The applicant appealed claiming, inter alia , that the court based its findings on false and contradictory witness evidence while certain witnesses for the defence had not been examined at all.

On 10 June 2008 the Court of Appeal quashed that judgment noting that the first-instance court made a mistake in compounding the sentences and remitted the case for a new trial ordering that the applicant ’ s contentions, set out in his appeal, be duly scrutinised.

During the new trial the first-instance court did not call any witness and examined the statements which the witnesses made earlier, either during the investigation or the previous trial sessions. The applicant denied the charges against him and claimed that the witnesses for the prosecution made false statements. He also requested that certain witnesses for the defence be called and questioned.

On 2 December 2008 the first-instance court found that in the evening of 31 March 2003 the applicant, together with an unknown person, inflicted grievous bodily injuries on Zh . causing the latter ’ s death. In support of the conclusion that it had been the applicant who caused the injuries, the court referred to the statements of witnesses Z., P., M., N. and F. who submitted as follows:

- Z. stated that on 31 March 2003 the applicant told him that he had to meet with Zh . in the evening. Later that night, the applicant came to Z. ’ s home and said that he had a meeting during which he “finished a guy” (« хлопнув фуцика ») . The applicant came to Z. ’ s home with a wooden truncheon. He then washed his hands and truncheon which displayed the spots of blood.

- P. submitted that on 31 March 2003 he was in Z. ’ s home when the applicant appeared with a truncheon. P. also heard the applicant saying that he had just beaten up a man.

- M. stated that on 31 March 2003 she was in Z. ’ s home when the applicant appeared. She saw that a part of the applicant ’ s jacket was washed off. She also noticed that the applicant had a truncheon.

- N. submitted that during the day on 31 March 2003 he, F., Zh ., the applicant and other people were drinking alcohol in a yard. In the morning on 1 April 2003 the applicant visited N., presented him a bottle of vodka and asked him to confirm that he stayed overnight in N. ’ s flat, if anyone asks.

- F., a girlfriend of N., made similar statements as N.

The court further held that the applicant ’ s allegations of ill-treatment by the police were unfounded and had been already rejected by the prosecutor ’ s office. The court sentenced the applicant to seven years and six months ’ imprisonment.

The applicant appealed claiming, inter alia , that the key witnesses were not examined by the court and that he was ill-treated by the police.

On 20 January 2009 the Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment. It noted that the applicant ’ s guilt was well established by the evidence in the file including the witness statements. The witnesses had not been examined during the trial as there had been objective reasons for their failure to appear while the first-instance court took necessary measures to ensure their attendance. The Court of Appeal further dismissed the applicant ’ s contentions that some witnesses for the defence had not been called noting that all the relevant circumstances had been properly established by the available evidence. The applicant ’ s allegations of ill-treatment were also dismissed as unsubstantiated.

The applicant appealed in cassation claiming, inter alia , that he was subjected to ill-treatment. He contended that he was convicted on the basis of false statements of witnesses who had not been examined during the trial. The applicant specified that those witnesses were themselves criminals and some of them were serving their sentences in prison. Moreover, some witnesses were drug addicts. Therefore, in the applicant ’ s opinion, those witnesses were dependent on the law-enforcement authorities.

On 23 February 2010 the Supreme Court dismissed the applicant ’ s appeal in cassation as unfounded noting that he was convicted fairly and the case file contained sufficient evidence proving his guilt. The applicant ’ s allegations of ill-treatment were unfounded and irrelevant as he made no self-incriminating statement throughout the criminal proceedings.

2. The pre-investigation enquiries concerning the alleged ill-treatment of the applicant on 30 June 2004

On 27 September 2004 the Kerch Prosecutor ’ s Office, having conducted pre-investigation enquiries, refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment by police officers in June 2004.

The applicant was not sent a copy of that decision.

On 7 May 2007, in reply to the applicant ’ s complaint of ill-treatment by police officers in June 2004, the Kerch Prosecutor ’ s Office informed him that those allegations had been earlier rejected as unfounded and there was no ground to review that matter.

3. The pre-investigation enquiries concerning the alleged ill-treatment of the applicant on 24 September 2005

On 5 and 15 June, 26 July, 3 September, 29 October 2007 the Kerch Prosecutor ’ s Office adopted decisions refusing to open an investigation in connection with the applicant ’ s allegations of ill-treatment during his arrest in September 2005.

All these decisions was quashed by the supervising prosecutor and further pre-investigation enquiries ordered.

On 26 November 2007 the Kerch Prosecutor ’ s Office again refused to open a criminal investigation on that account.

On 3 April 2008 the first-instance court rejected the applicant ’ s appeal against the decision of 26 November 2007 holding that it was lawful.

On 10 April 2008 the Kerch Prosecutor ’ s Office refused to allow the applicant ’ s request for examination of the file which was the basis for their decision of 26 November 2007. The request was refused as having no basis in domestic law.

On 11 August 2010, in reply to the applicant ’ s request for the copies of the documents concerning his injuries, the first-instance court noted that under the domestic law the applicant had not been entitled to obtain copies of the documents from the case file.

On 12 October 2010 the first-instance court additionally informed the applicant that his lawyer could visit the court ’ s registry and make necessary copies.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure are quoted in Kaverzin v. Ukraine (no. 23893/03 , § 45, 15 May 2012).

COMPLAINTS

QUESTIONS TO THE PARTIES

1. In respect of the events of 30 June 2004, has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from ill-treatment, was the investigation in that respect by the domestic authorities in breach of Article 3 of the Convention?

2. In respect of the events of 24 September 2005, has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from ill-treatment, was the investigation in that respect by the domestic authorities in breach of Article 3 of the Convention?

In respect of each of the above-mentioned issues under Article 3 of the Convention, the Government are invited to provide:

(a) copies of the applicant ’ s complaints submitted to the domestic authorities,

(b) the authorities ’ decisions taken in connection with the applicant ’ s allegations (including the decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing those decisions), and

(c) any material supporting those decisions (including the medical evidence concerning the applicant ’ s health at the relevant time).

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

The Government are invited to provide a chronological list of procedural measures taken by the authorities throughout the criminal proceedings.

4. Did the applicant have a fair hearing in the determination of the criminal charges against him, as required by Article 6 § 1 of the Convention?

Were the domestic proceedings compatible with Article 6 § 2 of the Convention, requiring, inter alia , that the burden of proof is on the prosecution, and any doubt should benefit the accused ?

Was the applicant ’ s right to examine witnesses restricted to an extent which is incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention?

The Government are invited to provide:

(a) a table showing when witnesses Z., P., M., N., and F. were questioned and who was conducting the questioning sessions,

(b) the records of those questioning sessions, and

(c) any material justifying the court ’ s refusals to question those witnesses during the last trial as well as the court ’ s rulings adopted in that regard.