FIFTH SECTION

Application no. 2704/11 Sergey Vasilyevich FESIK against Ukraine lodged on 21 December 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Sergey Vasilyevich Fesik , is a Ukrainian national who was born in 1980 and lives in Kharkiv . He was represented before the Court by Mr M.O. Tarakhkalo , a lawyer practising in Kharkiv .

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

A. The applicant ’ s ill-treatment

On 12 January 2008 the applicant was sitting in a café with friends. Around 10 p.m. he went out to smoke a cigarette and was apprehended by officers of the Moskovskiy District Police Department of Kharkiv as he had no identity papers with him.

The applicant was taken to Saltovskiy p olice station and placed in a cell, in which he spent two hours. At some point the applicant tried to call a friend on his mobile phone and ask him to bring his passport or otherwise confirm his identity. The police officers tried to take the telephone from the applicant despite his explanations that he needed it to contact family or friends in order for his passport to be fetched .

One of the police officers thr ew the applicant against the metal bars of the cell and handcuffed him. Then the police officers took him out of the cell and started punching and kicking him on the head, body and in the groin. The beating lasted until the early morning (around 3-5 a.m.). The applicant lost consciousness on several occasions. At some point, when the applicant had regain ed consciousness, one of the police officers took him to the lavatory to wash his face. Then the applicant was taken to the hall where ambulance doctors were wait ing for him. T he doctors examined the applicant and took him to hospital.

In the hospital the applicant was diagnosed with injuries to the left arm and the head. He also had numerous bruises to his face.

In the evening of 14 January 2008 the applicant was discharged from the hospital.

On 17 January 2009 the applicant was diagnosed with erectile dysfunction caused by chronic prostatitis , which the applicant considered an after-effect of the beatings. In 2009 he twice underwent treatment for those conditions .

B. Investigation into allegations of ill-treatment

On 14 or 15 January 2008 the applicant lodged a criminal complaint with the Moskovskiy District Prosecutor ’ s Office of Kharkiv (hereinafter “ the MDPO ” ) against the police officers.

On 19 January 2008 the MDPO instituted criminal proceedings against the police officers for abuse of authority accompanied with violence.

In January and February 2008 the MDPO investigator conducted some investigative actions with the participation of the applicant. The applicant was not involved in any further investigative actions.

On 12 September 2009 investigator S. of the MDPO summoned the applicant for additional questioning. When the applicant arrived , the investigator wrote up a transcript of questioning on a computer without asking him any questions. Then the investigator told the applicant that he had no printer to print out the record and suggested that they go to the Moskovskiy District Police Department building located nearby.

In the Police Department the investigator printed out the transcript, which indicated that the applicant had been beaten up by persons unknown and that the applicant had accused the police officers of beat ing him up because he was drunk and could not remember anything. The applicant refused to sign the document . Then police officers from the department threatened him with further beatings if he did not sign. Because he was afraid, he signed the document.

On 28 September 2009 the applicant requested the MDPO to have investigator S. replaced, and described in detail the events of 12 September 2009. On 29 September 2009 his request was re fused .

On 28 December 209 the applicant lodged a civil claim and a request for an additional forensic medical examination with the MDPO.

On 11 January 2010 the applicant was recognised as a civil claimant in the case, which entitled him to access to the file materials. The investigator also ordered an additional forensic examination of the applicant.

By a letter of 16 July 2010 the Kharkiv Regional Prosecutor ’ s Office informed the applicant that the forensic examination had not yet been carried out .

On 2 December 2010 the investigator refused the applicant ’ s request for access to the file materials .

COMPLAINTS

The applicant complains under Article 3 of the Convention that the police ill-treated him. He also complains under Articles 3 and 13 of the Convention that his complaints of ill-treatment have not been investigated properly, that the investigator is biased , and that he has no access to the case-file materials.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and 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? In particular, were the investigating authorities independent?