CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 juillet 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s75C985C { width:18.53pt; display:inline-block } .s9E16BFD3 { width:201.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 9884/02 by Dmitriy Mikhaylovich BROSHEVETSKIY against Ukraine The European Court of Human Rights (Fifth Section), sitting on 10   July   2007 as a Chamber composed of:   Mr   P. Lorenzen , President ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger ,   Mr   M. Villiger, judges , and Mr J.S. Phillips, Deputy Section Registrar, Having regard to the above application lodged on 21 December 2001, Having deliberated, decides as follows: THE FACTS The applicant, Mr Dmitriy Mikhaylovich Broshevetskiy, is a Ukrainian national who was born in 1970 and lives in Nova Odessa. The applicant is represented before the Court by Mr Stakheev, a lawyer practising in Kyrovograd. The facts of the case, as submitted by the applicant, may be summarised as follows. A.   The applicant’s detention and alleged ill-treatment On an unspecified date in June 1998 the police started an investigation into two car thefts in the course of which they identified Mr B. – a friend of the applicant – as a suspect. On 30 June 1998 a police officer of the Kirovograd City Police Department visited the applicant at home and questioned him as a witness about the two car thefts. The applicant was summoned to present himself the next day at the Kirovograd City Police Department for further questioning. On 1 July 1998 at around 10 a.m. the applicant, accompanied by his wife, arrived at the Kirovograd City Police Department which the applicant entered alone. According to the applicant, after having waited for about two hours, he was taken to a room, which apparently was only rarely used. The three police officers who questioned him suggested to him to admit that he had been involved in the car thefts. When he refused to do so, the officers wrapped his wrists with towel-like cloths and handcuffed him behind his knees. The applicant was subsequently suspended between two tables from a metal pole placed under his armpits. He allegedly remained in this position for several hours whilst he was repeatedly beaten by the police officers. They also placed on his head a tight-fitting rubber gas mask with a nearly closed oxygen vent, thus causing his near-suffocation. After having been subjected to this treatment for several hours, the applicant agreed to sign a confessing statement. In the morning of 2 July 1998, the police called an ambulance in order to provide the applicant with medical treatment in his cell. Later that day, the applicant was interrogated by the police inquiry officer ( дознавач ), who allegedly forced him to sign a document in which he waived his right to a lawyer. Nevertheless, a lawyer – hired by the applicant’s parents who had apparently been informed by the applicant’s wife that the applicant had not returned home – was allowed to visit the applicant later that day. Having been informed by the applicant of the treatment to which he had been subjected, this lawyer requested that the applicant be examined by a doctor. The applicant was then taken to the Kirovograd City Hospital where a doctor examined and treated him. In the course of the night of 2-3 July 1998 and at the request of the Head of the Kirovograd City Police Department, the applicant was examined by a medical expert of the Kirovograd Regional Bureau of Forensic Medical Examinations, who found and recorded a number of injuries on the applicant’s hands, chest and armpits and who noted that the applicant’s wrist movements were restricted and painful. According to his report dated 3 July 1998, these injuries could have been inflicted on 1 July 1998. On 4 July 1998 the Deputy Prosecutor of Kirovograd ordered the applicant’s detention on remand for two months on suspicion of involvement in car thefts. The applicant filed an appeal against this order. On the same day the applicant was transferred to the Kirovograd Regional Investigative Isolation Unit (the Kirovograd SIZO), where he was immediately placed in a medical cell. At his admission the applicant was examined by prison doctors who found various injuries on his hands and chest and who noted that he was unable to use his arms and left foot. On 13 July 1998 the applicant was formally charged with theft. On 28 July 1998 the Kirovsky District Court of Kirovograd allowed the applicant’s appeal against the Deputy Prosecutor’s decision of 4 July 1998 and ordered his release. It found that there was no factual basis for the prosecution’s argument that the applicant posed a risk of absconding. On 30 July 1998 the applicant was admitted to the Novoodessky District Hospital. On 5 August 1998 he was transferred from this hospital to the Odessa Central Hospital where he stayed until his discharge on 3 September 1998. Between 15 to 22 December 1998 the applicant received further treatment in the Mykolayv Regional Hospital. During his stays in these three hospitals the applicant was treated for multiple injuries to his head and hands, inflammation of nerves in his arms, a partial optic atrophy and depression. B.     Investigation into the applicant’s alleged ill-treatment On 14 August 1998 the Deputy Prosecutor of Kirovograd, acting on a criminal complaint filed by the applicant, instituted criminal proceedings against the three police officers allegedly involved in the applicant’s ill ‑ treatment. On 15 August 1998 the applicant was granted the status of a victim in these criminal proceedings. On 3 October 1998, as part of the investigation, the assigned investigator from the Kirovograd Regional Prosecutor’s Office ordered that medical evidence be obtained. On 9 October 1998 experts of the Kirovograd Regional Bureau of Forensic Medical Examinations and doctors from the Kirovograd Regional Hospital examined the applicant. According to their joint report, there was no indication that the applicant’s arms were impaired and they could not confirm an optic atrophy. As these conclusions contradicted those of the medical reports drawn up previously, the investigator ordered the Head Bureau of Forensic Medical Examinations to conduct a comprehensive medical examination of the applicant. In its report of 20 August 1999, a commission of the Head Bureau of Forensic Medical Examinations – composed of three experts – stated that the applicant’s nervous system had suffered severe and permanent damage, which could result from the ill-treatment described by the applicant. In particular, the damage to the applicant’s central nervous system could have resulted from beatings to his head or from a temporary deprivation of oxygen, and the sensory loss affecting his arms could have resulted from a tight fixation. The expert commission assessed the applicant’s general disability at 60% and his occupational incapacity as a school teacher at 100%. The investigator further questioned the applicant, the three police officers allegedly involved in the applicant’s ill-treatment, and the police inquiry officer who had interrogated the applicant on 2 July 1998. Although a confrontation was apparently held, it is unclear between whom and when. The three police officers concerned acknowledged that they had questioned the applicant on 1-2 July 1998, but denied that they had ill-treated him. In the course of an onsite inspection of the room in the Kirovograd City Police Department indicated by the applicant as the room where he had been questioned, the investigator found a gas mask. The criminal investigation was closed on 18 October 1999. The investigator decided not to take any criminal proceedings against the police officers concerned. The investigator concluded that, given the conflicting medical evidence as regards the gravity of the applicant’s injuries, this evidence was unreliable altogether. Referring to the statements given by the four police officers above, the investigator further concluded that there was no indication that the applicant had been ill-treated. The investigator’s decision did not mention any material evidence found during the investigation. On 15 December 2000 the Leninsky District Court of Kirovograd allowed the applicant’s appeal against the investigator’s decision of 18   October 1999. It quashed this decision and ordered further investigations into the applicant’s complaints. On 30 March 2001 the investigator – after having taken fresh statements from the applicant, two of the three police officers involved and the police inquiry officer – decided that there was no objective evidence that the applicant had been ill-treated in the Kirovograd City Police Department and closed the case. A copy of this decree was sent to the applicant on 30   July   2001. On 21 December 2001 the applicant filed an appeal against the investigator’s decision of 30 March 2001 with the Leninsky District Court of Kirovograd. He requested, inter alia , leave to appeal after the expiry of the statutory seven days’ time-limit laid down in Article 236-5 of the Code of Criminal Procedure (hereafter “the CCP”) , explaining that he had been in hospital for treatment of his disabilities when the decision of 30 March 2001 had been sent to him for notification purposes. On 3 January 2002 the Leninsky District Court of Kirovograd rejected the applicant’s appeal for having been filed out of time without any valid reason. C.     Criminal proceedings against the applicant According to a notice issued by the Kirovograd SIZO on 29 July 1998, the applicant was released subject to the preventive measure of an undertaking not to abscond. On 26 October 1999 the Prosecutor General’s Office informed the applicant that the criminal proceedings against him had been suspended on several occasions on account of his illness but that they were still pending. By letter of 20 February 2001 the Kirovograd Regional Prosecutor’s Office informed the applicant that an undertaking not to abscond had never been imposed on him, and that the criminal proceedings against him were still pending. According to a letter by the Kirovograd Regional Prosecutor’s Office of 12 March 2001, the criminal proceedings against the applicant were delayed due to the authorities’ inability to establish the whereabouts of the co ‑ suspect Mr   B. This letter also stated that the undertaking not to abscond imposed on the applicant at the time of his release was still valid. According to a letter of the Prosecutor General of 16 May 2001, the applicant remained formally charged with two counts of car theft but, since his release, the applicant’s freedom of movement was not restricted by any preventive measure. This letter further stated that on 14 February 2001 Mr   B. had been arrested in Kharkiv while attempting to steal a car. On 17 April 2002 the criminal proceedings against the applicant were joined to the criminal proceedings against Mr B. which had been instituted by the Kharkiv Regional Police Department. On 1 August 2002 the applicant was informed by the Kirovograd Regional Police Department that, on 28 December 2001, the proceedings against him had been suspended due to the authorities’ failure to establish the identity of his accomplices. On 13   September   2004, the applicant informed the Court that the criminal proceedings against him were still pending. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his detention in the Kirovograd City Police Department. 2.     Invoking Article 5 of the Convention, the applicant complained that his detention in police custody between 1 and 4 July 1998 had been unlawful and further that, in violation of domestic law, he had been subsequently detained on remand by the prosecutor without having been formally charged with any offence. 3.     Relying on Article 6 of the Convention the applicant contended that the authorities had failed to carry out an effective and thorough investigation into his complaints about having been ill-treated by the police. He also complained under Article 6 § 3 (a), (b) and (c) that the authorities were denying him access to court and thus the possibility to prove his innocence by their failure to transmit the case to court in order to start trial proceedings. 4.     Without referring to any specific provision of the Convention, the applicant complained that the criminal proceedings had exceeded a reasonable time and of the lengthy restriction on his freedom of movement. THE LAW A.     Alleged ill-treatment The applicant complained that he had been subjected to severe ill ‑ treatment whilst in police custody. He invoked Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. B.     The length of the criminal proceedings against the applicant The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. C.     The applicant’s right to freedom of movement The applicant complained about the lengthy restriction on his freedom of movement as a result of the undertaking not to abscond. He relied on Article 2 of Protocol No. 4, which, insofar as relevant reads as follows: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.... 3.     No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public , for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4.     The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. D.     Remainder of the complaints The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, it rejects this part of the application in accordance with Article   35 §§ 3 and 4 of the Convention as being manifestly ill-founded. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning his alleged ill-treatment (Article 3 of the Convention), the length of the criminal proceedings against him (Article 6 § 1 of the Convention) and the restriction of his freedom of movement (Article 2 of Protocol No. 4); Declares the remainder of the application inadmissible.   Stephen Phillips   Peer Lorenzen Deputy Registrar   President