CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 février 2009

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The second applicant, Mr Aleksandr Georgiyevich Medvedskiy, was born in 1976. Both applicants are Ukrainian nationals. Mr Lopatin lives in Snezhnoye, Ukraine. Mr Medvedskiy is currently detained. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background of the case On 24 July 1998 two individuals attempted to rob Mr L. who was a currency exchange dealer and was known to have significant amounts of cash on him. One of them tried to hit Mr L. while the other wrested the bag from him. Both attackers ran away. Mr L. followed them and one of the attackers shot him in the legs. Two other individuals, Mr S. and Mr La. tried to stop the attackers but were both shot in the legs as well. The attackers dropped the bag and escaped. This incident was witnessed by several other people. On 4 July 1999 Mr L. was shot to death. According to the witnesses two perpetrators left the scene of the crime on a motorcycle. 2.     Criminal proceedings against the applicants On 10 July 1999 the applicants were apprehended by the police and brought to the Torez Town Police Station. At the station the police officers ill-treated them in order to extract confessions to attempted robbery and murder of Mr L. On 12 July 1999 the identification of the applicants by the witnesses Sa. and G. and victim La. had been conducted in the absence of lawyers recruited by their relatives to represent them. The applicants’ detention at the police station was not recorded until the evening of 13 July 1999. The applicants were then allowed to see their lawyers. On 16 July 1999 the applicants were charged with robbery. On 12 October 1999 Mr Medvedskiy was additionally charged with murder. In January 2000, when the investigation was completed and the applicants studied the case-file, Mr Medvedskiy requested confrontation with witness T. This request was rejected on 17 January 2000. On 8 February 2000 the case-file was referred to the court. On 7 June 2002 the Donetsk Court of Appeal, acting as a first instance court, sentenced Mr Lopatin to nine years’ imprisonment for robbery and Mr Medvedskiy for fifteen years’ imprisonment for robbery and murder. The court based its findings, among other things, on the testimonies of two victims and several witnesses of the attempted robbery of 24 July 1998. The court also took into account the note written by the late Mr L. with names and addresses of the applicants, which was found by his wife in his belongings after his death. As to the episode of murder, several witnesses saw two persons escaping from the site of a crime on a motorcycle; they fell while leaving and one of them lost a shoe. Furthermore, witness T. testified before the court that on the day of the murder Mr Medvedskiy took his motorcycle and returned it damaged later the same day. Mr T. also testified that Mr Medvedskiy was wearing only one shoe when he returned with the motorcycle. Mr T. was approached by the applicant and a relative of his girl-friend who asked him to repair the motorcycle as soon as possible and to keep secret the fact that Mr Medvedskiy had used the vehicle. The court disregarded the testimonies of Mr Medvedskiy’s mother and his girl-friend who claimed that he had been at home at that time. The court, however, accepted the alibi of Mr   Lopatin for 4 July 1999, having found it convincing. In their cassation appeals the applicants complained about violation of their procedural rights, wrong assessment of evidence and failure to call all witnesses in their defence. They also complained that during their unreported detention they were questioned and identified in the absence of their lawyers. On 14 November 2002 the Supreme Court of Ukraine upheld the decision of the Donetsk Court of Appeal having found no violation of the applicants’ procedural rights. 3.     Investigation into the allegations of ill-treatment and unreported detention On 15 July 1999 both applicants were examined by a forensic medical expert who drew up reports of the same date. The expert found that Mr Medvedskiy had bruises and scratches on his face, wrists, left elbow, legs, buttocks, hips and back. The expert concluded that bruises could have been caused by hard objects and could be classified as light bodily injuries. In particular, bruises on the buttocks and hips could have been caused by a truncheon between 10 and 12 July 1999. He further concluded that the scratches on the wrists could have been caused by the use of handcuffs between 10 and 12 July 1999. With respect to Mr Lopatin, the expert found that he had bruises and scratches on his forehead, neck, wrists, shoulders, back, legs and hips. The expert concluded that the bruises could have been caused by hard objects and could be classified as light bodily injuries. He further concluded that the scratches on the wrists could have been caused by the use of handcuffs between 10 and 12 July 1999. On 6 August 1999 the Torez Prosecutor’s Office refused to institute criminal proceedings into the allegations of ill-treatment and unlawful detention between 10 and 13 July 1999. The decision mentioned that the applicants were identified by witnesses on 12 July 1999 but were arrested on 13 July 1999 only. The investigator further noted that Mr Lopatin resisted his placement in a cell and that force was used against him lawfully. As to Mr Medvedskiy, the investigator noted that he fought with a cellmate. The investigator concluded that no evidence was found that the police inflicted bodily harm on the applicants. On 7 June 2002 the Donetsk Court of Appeal, while convicting the applicants, issued a separate ruling requesting the Torez Prosecutor Office to check the lawfulness of the applicants’ detention in the Torez Police Station between 10 and 13 July 1999 and their allegations of ill-treatment. On 25 September 2003 the Torez Court quashed the decision of 6 August 1999 in respect of both applicants and sent the materials for further investigation. The court noted that there were documents confirming the applicants’ detention and bodily harm. On 3 October 2003 the Torez Prosecutor Office refused to institute criminal proceedings. In the decision it was noted that the applicants were brought to the police station on 10 July but until 13 July the investigators checked their testimonies and interviewed them, while no data on unlawful detention of the applicants in the Torez Police Station was found. Upon complaints of the applicants’ representatives the decision of 3   October 2003 was quashed by the Torez Court on 20 September 2004 in respect of Mr Lopatin and on 15 December 2004 in respect of Mr   Medvedskiy. In both cases the court ordered further investigation into the applicants’ allegations. On 4 February and 20 March 2005 the Torez Prosecutor’s Office refused to institute criminal proceedings into the applicants’ allegations. These decisions were quashed by the Donetsk Regional Prosecutor’s Office respectively on 17 February and 31 March 2005. On 15 April 2005 the Torez Prosecutor’s Office refused to institute criminal proceedings. It was decided that the bodily harm sustained by Mr   Lopatin was a result of lawful use of force by the police and that the bodily harm sustained by Mr Medvedskiy was the result of a fight with his cellmate. It was further established that the applicants were unlawfully detained in the Torez Police Station between 10 and 13 July 2005, but the officials of the above police station could not be brought to criminal liability for abuse of power due to time-bar for the prosecution. By a letter of 29 December 2005, the Prosecutor of Donetsk Region informed Mr Medvedskiy’s mother that they would no longer reply to her complaints about refusal to institute criminal proceedings into the allegations of unlawful detention and ill-treatment. COMPLAINTS Both applicants complained their detention between 10 and 13 July 1999 was not recorded and that during this period they were ill-treated by the police. They relied on Articles 3 and 5 § 1 of the Convention. Mr Lopatin also complained that he had no effective remedy for his above complaints as required by Article 13 of the Convention. They further complained under Article 6 § 1 of the Convention regarding unfairness and length of the proceedings. Mr Medvedskiy also complained with reference to Article 6 §§ 3 (c) and (d) that his lawyer was not allowed to see him during the first three days of his detention and that the police and the courts did not question all his witnesses, that he could not question witness T. during the investigation and that his alibi for 24 July 1998 had not been verified. In addition to his above complaints under Articles 3, 5 § 1 and 6 § 1 of the Convention, Mr Lopatin complained that his pre-trial detention pending trial was also not in compliance with requirements of Article 5 §§ 1 (c), 3 and 4 of the Convention. Under Article 6 § 1 the applicant complained about assessment of evidence and violation of equality of arms. Under Article 6 § 2 he complained that the police did not respect his right to presumption of innocence by forcing him to self-incrimination. Under Article 6 § 3 (a) the applicant complained that he was informed about charges against him only on the seventh day of his detention. He complained under Article 6 § 3 (b) and (c) that he did not have enough time to prepare his defence and that contact with his representatives during the hearings was prohibited. THE LAW 1.     The applicants complained about ill-treatment by the police during their unreported detention between 10 and 13 July 1999. They further complained that the investigation into their above allegations was not effective. They relied on Articles 3 and 5 § 1 of the Convention. In addition Mr Lopatin referred to Article 13 of the Convention. The applicants also complained under Article 6 § 1 about length of the proceedings in the criminal proceedings against them. The above-mentioned provisions of the Convention read in so far as relevant as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 § 1 “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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 applications to the respondent Government. 2.     The Court has examined the remainder of the applicants’ complaints as submitted by them. 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 applications in accordance with Article   35 §§ 3 and 4 of the Convention as being manifestly ill-founded. For these reasons, the Court unanimously Decides to join the applications; Decides to adjourn the examination of the applicants’ complaints concerning unreported detention and ill-treatment by the police and lack of effective investigation into these allegations, as well as length of the criminal proceedings in their case; Declares the remainder of the applications inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President