FIFTH SECTION

Application no. 2204/07 Andriy Igorovych GUKOVYCH against Ukraine lodged on 20 September 2006

STATEMENT OF FACTS

The applicant, Mr Andriy Igorovych Gukovych, is a Ukrainian national, who was born in 1974 and lives in Lviv.

A. The circumstances of the case

At about 7 p.m. on 20 February 2002 three police officers arrested the applicant in the street near his home and brought him to the Lv iv sobering-up centre, where Y. B., the centre ’ s paramedic, concluded, upon a visual examination, that the applicant was suffering “from alcohol intoxication of intermediate degree.”

According to the applicant, he was sober at the material time and verbally protested against his arrest and placement in the sobering-up centre. In response to his protests, he was beaten up and forced to sign a confinement report, in which he had to acknowledge that he had consumed 250 ml of vodka.

At about 7 a.m. on 21 February 2002 the sobering-up centre ’ s staff informed the applicant ’ s mother on the telephone about her son ’ s whereabouts and invited her to pick him up from the centre.

At about 8 a.m. on the same day the applicant ’ s mother arrived and took the applicant home, after having paid UAH 34.80 (hryvnias), which appears to be the service charge.

Before his release, the applicant noted in his confinement report that he had no complaints against the sobering-up centre ’ s staff.

At about 1 p.m. on 22 February 2002 the applicant was received by an emergency doctor, who certified that he was suffering from a " household injury " , namely, contusions of an elbow joint and the eye-brow area. On the same date the applicant passed tests which indicated absence of alcohol in his blood.

Until 18 March 2002 the applicant remained in out-patient treatment for the above injuries.

On 25 February 2002 the attending doctor amended the applicant ’ s record, having noted, that, according to the applicant, his injuries had been inflicted on 20 February 2002 by law-enforcement authorities in the sobering-up centre.

According to the applicant, between February and July 2002 he lodged numerous applications with the prosecutors ’ office, complaining that he had been arbitrarily arrested and placed in a sobering-up facility, where he had been subjected to inhuman treatment. The prosecutors ’ office either ignored his complaints or provided formalistic answers, without carrying out proper investigation.

In July 2002 the applicant lodged a civil suit with the Shevchenkivsky District Court of Lviv against the Lviv sobering-up centre, two of its officers, including paramedic Y.B., and the three police officers, who had arrested him. He sought moral damages for his injuries and allegedly arbitrary arrest and confinement. In addition, the applicant requested the court to “issue a separate ruling imposing criminal liability on the defendants for abuse of office and excess of power” .

At the trial, the sobering-up centre ’ s representatives submitted that in determining the degree of alcohol intoxication they acted in accordance with a relevant instruction, issued by the Ministry of Interior. According to this instruction, a visual examination without taking any tests sufficed to establish the level of one ’ s alcohol intoxication. They further submitted that upon his placement in their facility, the applicant had behaved aggressively and caused a lot of noise. To calm him down, the staff had tied him up between 23:30 and 23:55. They further submitted that the applicant had no injuries either upon his placement to their facility, or upon his release.

On 6 June 2003 the court rejected the applicant ’ s claims as unsubstantiated. It referred, in particular, to the applicant ’ s own acknowledgment in the confinement report that he had drunk alcohol and had no complaints against the facility ’ s staff. It further noted that the applicant had failed to explain why he had not complained about his injuries and had not taken alcohol tests until more than 24 hours after his release and why he had initially reported to the emergency doctor that his injuries were " of household nature " . In these circumstances, the court found that the applicant had likely sustained his injuries upon his release and that there were no grounds to consider that he had been sober upon his arrest.

The applicant appealed. He submitted, in particular, that the confinement report had not been good evidence, as it had been signed by him under duress. Should the applicant have acted of his own accord, he would not have signed that report, which was largely illegible, and featured numerous inaccuracies, including a wrong date of his arrest. The applicant also submitted that the court had unreasonably refused his request to oblige the prosecutors ’ office to produce the results of their inquiry concerning the applicant ’ s complaints.

On 13 October 2003 the Lviv Regional Court of Appeal rejected the applicant ’ s appeal, having found that he had failed to substantiate his allegations. It also noted that the prosecutors ’ office had reported that no criminal proceedings had been instituted to investigate the applicant ’ s complaints.

The applicant appealed in cassation. He noted, in particular, that his arrest and confinement were arbitrary, since neither the confinement report, nor any other document stated the circumstances, in which he had been arrested, or the grounds why his confinement was necessary. He further noted that the method of determining that he had been suffering from alcohol intoxication of " intermediate degree " based on visual examination only and without any objective tests was likewise arbitrary and that neither the defendant authority, nor the courts referred to any specific legal provision governing such practice. The applicant also submitted that the authorities had acted arbitrarily in not notifying his family about his confinement until some twelve hours upon his arrest. He further complained that neither the prosecutors ’ office, nor the civil courts had taken good-faith effort to establish the circumstances, in which he had sustained injuries, and so his version of events remained credible and unrebutted .

On 28 March 2006 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

COMPLAINTS

The applicant complains that he was subjected to ill-treatment in the Lviv sobering-up centre and that the authorities failed to establish relevant facts.

He further complains that he was arbitrarily arrested and confined in the Lviv sobering-up centre.

Finally, the applicant complains that the domestic courts failed to establish the facts of his case correctly and to apply the law properly.

The applicant refers to Article 6 of the Convention in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Have the injuries, reported by the applicant on 22 February 2002, resulted from his inhuman or degrading treatment in breach of Article 3 of the Convention in the Lviv sobering-up centre?

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 of the circumstances, in which the applicant sustained the above injuries, by the domestic authorities in breach of Article 3 of the Convention?

In particular, regard being had to the circumstances of the present case, were the authorities obliged to carry out official investigation into the applicant ’ s allegations and to establish the circumstances, in which he sustained injuries?

The Parties are invited, in particular, to provide copies of the applicant ’ s relevant complaints to the prosecutors ’ office and decisions taken by the latter upon their consideration.

3. Was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention? In particular, were his arrest and detention lawful and necessary in the circumstances of the case (see Witold Litwa , cited above, §§ 72-80 Kharkin , cited above, §§ 35, 40 and 43 and Hilda Hafsteinsdóttir v. Iceland , no. 40905/98, §§ 51-56, 8 June 2004).

The Parties are requested, in particular, to provide references to relevant domestic legal acts listing the grounds for arrest and governing detention of persons in sobering-up facilities.