FIFTH SECTION

Application no . 42856/09 Sergey Aleksandrovich SKNAR against Ukraine lodged on 23 July 2009

STATEMENT OF FACTS

The applicant, Mr Sergey Aleksandrovich Sknar, is a Ukrainian national, who was born in 1983 and has his permanent address in Artemivsk.

The circumstances of the case

1. Criminal proceedings against the applicant and his detention pending investigation and trial

In the morning of 21 June 2007 the Debaltseve police officers joined by the V. spouses, whose car had been hijacked on the same day, discovered the car in possession of the applicant and L.

Having arrested the applicant and L., at about 7 . 50 p.m. on the same day the police officers drew up a report, according to which the applicant was arrested on suspicion of hijacking a motorcycle at an earlier date.

In the course of the interrogations the applicant confessed to having hijacked several other vehicles in association with various individuals, including minors.

On 23 June 2007 the Debaltseve Court remanded the applicant in custody, referring, in particular, to the gravity of the charges and the likelihood of him re-offending, regard being had to his recent criminal record and the charges of multiple hijackings. According to the case-file materials, the applicant did not appeal against this decision.

Subsequently seven other individuals, including several minors, were indicted on various counts of hijacking within the framework of the same proceedings.

On 6 September 2007 the applicant and his co-defendants were committed to stand trial before the Debaltseve Court .

On 26 January 2009 the Debaltseve Court convicted the applicant of several counts of hijacking of private cars and motorcycles and engagement of minors in criminal activity. The court sentenced him to five and a half years ’ imprisonment.

On 8 May 2009 the Donetsk Regional Court of Appeal quashed this judgment and remitted the case for a fresh examination.

In August 2009 the applicant complained to various authorities about the protraction of the court proceedings in his case and his continued detention.

On 13 August 2009 the Debaltseve Court informed the applicant that some of his co-defendants, who had not been in custody, had repeatedly failed to report for the hearings, which therefore needed to be adjourned. It further noted that another hearing had been adjourned on account of the judge ’ s sickness and that the court was heavily understaffed. In particular, out of six judicial posts only two were filled.

According to the applicant, on several occasions he requested the Debaltseve Court to release him subject to an undertaking not to abscond, since he had been imprisoned for a long time and his trial was still underway.

2. Investigation into the applicant ’ s ill-treatment complaints

According to the applicant, following his arrest on 21 June 2007, he was chained to a radiator in the Debaltseve police premises for about twelve hours. Three police officers continued to beat and threaten him during this time, demanding confessions of his involvement in various unresolved crimes.

On the same day the applicant addressed a statement to the Chief of the Donetsk Regional Police Department, according to which at about 11 p.m. on 20 June 2007 he had fallen from a motorcycle driven by a friend of his. As a result, he had injured the right side of his forehead, the left hip, buttock and back, and obtained a haematoma around the right eye.

According to the applicant, on 23 June 2007 he informed the investigator in his case that he had never fallen from a motorcycle and his injuries had in fact been inflicted by the police, however, this complaint was not recorded.

On the same day the investigator in the applicant ’ s case ordered an expert assessment of his injuries.

On 25 June 2007 the expert assessment was completed and the applicant was certified as suffering from light bodily injuries (i.e. redness in the upper lip area, contusions of the right side of the forehead, right radiocarpal joint, left forearm, back, knee joints and the left shin, as well as bruises around and haemorrhages in the right eye). These injuries were assessed as having resulted from impact of blunt objects with rough surface. The knee and shin injuries were characterised as predating the assessment more than three days, while the other injuries were estimated to have been sustained within three days of the assessment, possibly on 22 June 2007.

On 16 July 2007 the investigator in the applicant ’ s case recorded his statement that his injuries had been inflicted by police officers during his arrest and in the police department.

In December 2007 the applicant and his co-defendant L. requested the Debaltseve Prosecutor ’ s Office to investigate their allegations of ill ‑ treatment.

On 9 January 2008 the Debaltseve Prosecutor ’ s Office rejected this request as unsubstantiated.

In February 2008 the applicant lodged a new complaint, seeking investigation into his allegations of ill-treatment.

On 1 March 2008 the Debaltseve Prosecutor revoked the refusal of 9 January 2008 and ordered further inquiry into the applicant ’ s complaints.

In March 2008 the Debaltseve Prosecutor ’ s Office questioned the three police officers implicated by the applicant in his ill-treatment and the chief of the police department, who denied the applicant ’ s allegations. They also questioned a medical professional of the Artemivsk Pre-trial Detention Centre (SIZO), who submitted that upon his placement in the facility, the applicant had mentioned that he had been injured during the arrest operation.

Following these inquiries, on 11 and 14 March 2008 the Debaltseve Prosecutor ’ s Office again refused to institute criminal proceedings.

On 10 April 2009 the Debaltseve Prosecutor revoked the refusal of 11 March 2009 and referred the matter for further inquiry.

On 12 April 2009 the Prosecutor ’ s Office refused to institute proceedings, which decision was quashed by the Debaltseve Prosecutor on 27 May 2009 and followed by a new refusal of 16 June 2009. In this latter refusal, the Prosecutor ’ s Office additionally noted that the applicant ’ s allegations were not credible, since he had been voluntarily confessing and denying any ill-treatment for nearly one month from the date of his arrest and had first complained about ill-treatment on 16 July 2007 only. They also referred to the statements by the V. spouses, present during the arrest operation, that no beating had taken place during the arrest.

In August 2009 the applicant complained to the Debaltseve Court about the Prosecutor ’ s Office ’ s failure to investigate his allegations of ill ‑ treatment. He noted in his submissions that he did not know the grounds for their refusal to investigate, since he had never been given a copy of the relevant decision and had only been informed about the fact of the refusal as such. He also noted that the Prosecutor ’ s Office had ignored his requests to provide him with a copy of their decision.

On 21 August 2009 the Debaltseve Court informed the applicant that it was unable to examine his complaint, since it was not clear which particular document he sought to challenge.

On 24 August 2009 the applicant re-lodged his complaint, stating that he was challenging the Debaltseve Prosecutor ’ s Office ’ s refusal to institute criminal proceedings into his ill-treatment allegations by three police officers dated 11 March 2008.

On 28 August 2009 the Debaltseve Court rejected the applicant ’ s complaint, having referred to the fact that the decision at issue had been revoked on 10 April 2009, while the decision of 16 June 2009, which had remained in force, had not been challenged by the applicant.

On 4 September 2009 the applicant requested the Debaltseve Prosecutor ’ s Office to provide him with a copy of the decision of 16 June 2009 and complained that he had never been informed of its existence before the court hearing.

On 11 September 2009 the applicant received a copy of the decision of 16 June 2009 and subsequently appealed against it before the Debaltseve Court .

On 23 September 2009 the Debaltseve Court quashed this decision. It found that the Prosecutor ’ s Office had not taken measures to determine whether the applicant ’ s injuries could have plausibly resulted from a fall from a motorcycle. It also noted that the applicant had not been questioned concerning details of his purported ill-treatment. In particular, it was not clear who, when, and how had purportedly inflicted each particular injury according to the applicant. It was also not clear, how and in which setting the applicant had informed the police about his fall from the motorcycle and whether this statement had been given of his own accord.

On 2 October 2009 the applicant addressed a letter to the Donetsk Regional Prosecutor ’ s Office, challenging the position of the Debaltseve Prosecutor ’ s Office concerning his ill-treatment submissions. He noted, in particular, that he had first complained about the ill-treatment on 23 June rather than 16 July 2007, hence the expert assessment of his injuries had been ordered.

On 23 October 2009 the applicant requested the Donetsk Regional Prosecutor ’ s Office to induce the Debaltseve Prosecutor ’ s Office to act in investigating his ill-treatment allegations.

It is unclear from the case-file materials, whether any further action in investigating the applicant ’ s ill-treatment complaints has been taken.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by the police in order to extract from him self-incriminating statements.

He further complains under Article 5 § 3 of the Convention that the trial court has failed to adduce relevant and sufficient reasons for remanding him in custody and that his detention without conviction has been inordinately lengthy.

The applicant next complains under Article 6 § 1 of the Convention that the criminal proceedings against him have been unfair and that they have lasted an unreasonably long time.

Finally, the applicant complains under Article 13 of the Convention about lack of domestic remedies for his Convention complaints.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment in breach of Article 3 of the Convention while in police custody?

2. Having regard to the 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 the length of the applicant ’ s detention pending investigation and trial in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

4. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention?

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

6. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1 concerning the length of the proceedings, as required by Article 13 of the Convention?