FIFTH SECTION

Application no. 46101/07 Andrey Vladimirovich GAREV against Ukraine lodged on 13 October 2007

STATEMENT OF FACTS

The applicant, Mr Andrey Vladimirovich Garev , is a Ukrainian national, who was born in 1966 and lives in Volnyansk . He is represented before the Court by Mr P. M. Paskal , a lawyer practising in Zaporizhzhya .

The circumstances of the case

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

1. The applicant ’ s ill-treatment and investigation into it

On 27 March 2004 the applicant was apprehended by the police near the house of his acquaintance G. The applicant did not resist but the police officers beat him first on the street and then in the apartment of G.

On 30 March 2004 the applicant ’ s mother lodged a complaint against the police with the Vasylivka District Prosecutor ’ s Office.

On 31 March 2004 the applicant was referred by a prosecutor to a forensic medical expert for examination. The expert established bruises on the applicant ’ s forehead and his left ear and noted that the applicant had probably several ribs broken, but drew no conclusion in this respect.

On 6 August 2004 the Vasylivka District Prosecutor ’ s Office refused to institute criminal proceedings into the applicant ’ s allegations of ill-treatment for lack of corpus delicti . Upon the complaint of the applicant ’ s mother this decision was later quashed.

On 24 November 2006 the Vasylivka District Prosecutor ’ s Office refused again to institute criminal proceedings into the applicant ’ s allegations of ill ‑ treatment by the police and lack of medical treatment during his pre-trial detention. This decision was quashed by the Vasylivka District Court on 20 December 2007.

On 9 October 2008 the Vasylivka District Prosecutor ’ s Office again refused to institute criminal proceedings against the police officers who had arrested the applicant on 27 March 2004. The prosecutor ’ s decision noted that at the time of the arrest the applicant tried to escape and the police had to apply martial art techniques against him. The prosecutor also noted that the applicant sustained only minor injuries. Moreover, there was no confirmation that the applicant, apart from bruises, had also several ribs broken. As to medical treatment during the applicant ’ s pre-trial detention, the prosecutor noted that the officers had duly reacted to every health complaint raised by the applicant.

On 23 April 2009 the Vasylivka District Court quashed the prosecutor ’ s decision of 9 October 2008. The court noted, in particular, that the investigation had not checked whether the martial art techniques applied by the police had been necessary and proportionate. It also noted that according to the case-file materials x-ray confirming numerous fractures of the applicant ’ s ribs had been made but had been missing from the file.

2. Criminal proceedings against the applicant

Following his arrest on 27 March 2004, the applicant was accused of storing and selling drugs as a part of the organised criminal group. Seven members of the group, including the applicant, stood trial in the Energodar Town Court of Zaporizhzhya .

On 25 January 2005 the court hearing was adjourned because of the applicant ’ s illness.

On 21 March 2005 the court allowed the applicant ’ s motion to be represented in the proceedings by his mother.

On 22 September 2005 the court heard the testimonies of doctor Ts., who stated that the applicant was ill [ exudative pleurisy] and required in-patient treatment for two months. The court refused to adjourn the hearing because of the applicant ’ s illness, but severed the criminal proceedings against the applicant from those concerning the six other members of the group and suspended the proceedings against the applicant until his health improved.

On 17 November 2005 the court resumed the proceedings against the applicant. The applicant complained during the hearing about health problems and an ambulance was called. The ambulance paramedical examined the applicant and concluded that he could participate in the hearing.

On 21 November 2005 the court found the applicant guilty on multiple counts of storing and selling drugs and sentenced him to ten years ’ imprisonment. The court based its findings on partial confessions of the applicant ’ s accomplices and testimonies of numerous witnesses given at the pre-trial stage.

On 5 July 2006 the Zaporizhzhya Regional Court of Appeal changed the judgment of 21 November 2005 and reduced the sentence to five and a half years ’ imprisonment. It found that the applicant ’ s involvement in some of the episodes of storing and selling drugs had not been proved and accordingly acquitted him in part. The court also found that the first instance court had rightly severed the proceedings against the applicant and that prior to that severance the applicant participated together with other co-accused in seven court hearings between March and September 2005 and he knew the position of his co-accused. Therefore, in the opinion of the appellate court, the first-instance court had rightly refused the applicant ’ s request for the presence of his accomplices, who had been already convicted, in the further court hearings. The court also noted that many summoned witnesses, including three persons who had bought drugs from the applicant under instruction of the police, had not appeared and could not be located as they had moved out from their known places of residence. The applicant was represented in the appeal proceedings by his mother and lawyer P.

The applicant appealed in cassation. In his appeal he complained that only four out of forty eight witnesses had been questioned in court. He also complained that the proceedings had been resumed despite his poor state of health and that he had been ill-treated by the police.

On 10 May 2007 the Supreme Court upheld the decision of the court of appeal. It noted that there had been sufficient evidence for the applicant ’ s conviction and that his complaints about ill-treatment had been examined and rejected as unsubstantiated on 6 August 2004.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was beaten by the police. He further complains that he was unlawfully deprived of his liberty in violation of Article 5 § 1 of the Convention. He also complains under Article 6 of the Convention that the courts were biased and treated him as guilty in violation of the presumption of innocence principle. He finally complains that the trial was unfair given that not all of the witnesses had been questioned and he was not fit to stand trial and defend himself due to health problems.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment by the police on 27 March 2004, in breach of Article 3 of the Convention?

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. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant able to examine witnesses against him, as required by Article 6 § 3 (d) of the Convention?