CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 décembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s5ADA996E { margin-top:0pt; margin-left:14.2pt; margin-bottom:6pt; text-indent:-14.2pt } .sF913DDB9 { width:10.2pt; font:7pt 'Times New Roman'; display:inline-block } .sC65EB21A { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:-14.2pt }     Communicated on 1 December 2014   FIFTH SECTION Application no. 65117/11 Vyacheslav Vasylyovych OLIYEVSKYY against Ukraine lodged on 17 October 2011 STATEMENT OF FACTS The applicant, Mr Vyacheslav Vasylyovych Oliyevskyy, is a Ukrainian national, who was born in 1985. According to the most recent factual update of July 2013, he was then undergoing enforced medical treatment in the Chernivtsi Regional Psychiatric Hospital. He is represented before the Court by Ms G.V. Nazarova, a lawyer practising in Chernivtsi. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Prior to the events in question the applicant had not had any medical record of psychiatric disorders. In 2009 he obtained a law degree. He also had a private farming business. From 26 November 2009 to 6 July 2010 the applicant carried out mandatory army service. On 11 April 2011 the applicant was apprehended by the police, together with some other persons, on suspicion of a theft attempted earlier that day. On the same day, around 9 p.m., the applicant wrote “a statement of voluntary surrender to the police”, in which he confessed to having attempted stealing some equipment from a mining site, together with his acquaintances. Still on 11 April 2011 a criminal case was opened against the applicant in respect of the aforementioned episode. On 12 April 2011 the applicant’s detention was documented. It was indicated in the report that he had been detained on that day. According to the applicant, he was placed in the Zastavna Temporary Detention Facility (ITT), where he was held till 29 June 2011 (see below). Also on 12 April 2011 another criminal case was opened against the applicant. It concerned a theft from a private garage on an unspecified date in spring 2010. It is not clear what led the investigator to open this case. On 14 April 2011 the Zastavna Court examined the investigator’s application for the applicant’s remand in custody as a preventive measure pending trial. The investigator submitted that the applicant was suspected of serious crimes punishable by imprisonment from three to six years and that he could abscond or hinder the investigation if at liberty. The court did not rule on the above application at that stage, but decided to extend the applicant’s detention to ten days, that is till 23 April 2011. It held as follows:   “... presently there are no grounds for [the applicant’s] pre-trial detention, because there is no sufficient information about him. [Furthermore,] not all the requisite investigative measures have been carried out, in particular, the investigator has not collected all the data characterising the detainee and has not brought formal charges against him. Accordingly, there are no grounds for remanding [the applicant] in custody as a preventive measure. However, in order to ensure his presence when summoned by the investigator and for clarification of all the circumstances of the case, it is necessary to extend the term of [the applicant’s] detention.” On 19 April 2011 the applicant wrote a confession to theft of metal cable from a mining site committed in February 2011 by a group of persons. A criminal case was opened in that regard. On the same day another criminal case was opened against the applicant, on suspicion of a theft of a bicycle. On 22 April 2011 the Zastavna Court remanded the applicant in custody. It listed the four criminal cases, which had been opened against him (a theft and an attempted theft from a mining site, a theft from a garage and a bicycle theft), and noted that those were serious crimes punishable by imprisonment from three to six years. The court considered that to be a sufficient indication of the risk of the applicant’s absconding or hindering the investigation if at liberty. Although the applicant’s lawyer (appointed on an unspecified date) requested that a less intrusive preventive measure be applied, such as an undertaking not to leave the town or a bail, the court held, in general terms, that a less severe measure might not ensure the applicant’s compliance with his procedural obligations. On 8 June 2011 the Zastavna Court extended the applicant’s pre-trial detention to four months, that is till 12 August 2011. It explained that decision by the seriousness of the charges against the applicant and the necessity to carry out unspecified additional investigative measures. The court also considered it to be of relevance for this decision that the applicant had only partially confessed to the criminal offences in question. On 24 June 2011 formal charges were brought against the applicant. In addition to the episodes mentioned above, he was also charged with a robbery by a group and another count of theft. At a certain point the applicant was transferred to the Chernivtsi Pre-Trial Detention Centre (SIZO). According to the applicant, his transfer took place on 29   June 2011. Some materials in the case file suggest that it was on 22 April 2011 (see below the summary of the prosecutor’s letter to the applicant’s mother of 23 May 2012). On 29 June 2011 a psychiatrist of the Chernivtsi SIZO examined the applicant and diagnosed him for the first time with an acute polymorphic psychotic disorder without schizophrenia symptoms. According to the examination report, the applicant was talking about God all the time and with a monotonous voice, was trying to undress and was expressing some delirious ideas of religious contents. The doctor prescribed neuroleptics (antipsychotic drugs) to him. It appears that this examination was undertaken after the applicant’s cell mates had informed the administration that he had not slept and had been praying the entire night.   On 1 and 4 July 2011 the applicant was examined by the SIZO psychiatrist again, with no significant changes having been reported. It was decided to continue the earlier prescribed treatment. The psychiatrist repeated the applicant’s examinations periodically. On 8 July 2011 the applicant and four other co-accused were indicted, and the case was referred to the Kitsman Town Court (“the Kitsman Court”) for trial. On 4 August 2011 the applicant refused the services of the appointed lawyer, since the latter was a retired law-enforcement official and the applicant considered that the lawyer had not been acting in his interests. On 9 September 2011 the applicant’s mother was admitted in the proceedings as his close relative having a defender’s capacity. It appears that she complained to various authorities that, when she had seen the applicant in August 2011 for the first time since he had been detained, she had noticed that he had dark bruises on his legs and a big lump on his forehead. Furthermore, his behaviour appeared inadequate. This led the applicant’s mother to suspect that he had been subjected to ill-treatment and psychological pressure, and she sought investigation into the matter. On 17 October 2011 the governor of the Chernivtsi SIZO wrote to the applicant’s mother that the applicant had been diagnosed with an acute polymorphic psychotic disorder and that he was treated with neuroleptics (antipsychotic drugs), with some “episodic improvements” of his condition. The official stated that a forensic psychiatric examination of the applicant was required for establishing his final diagnosis. On 31 October 2011 the applicant’s mother requested the Kitsman Court for the applicant’s forensic psychiatric examination. On 1 November 2011 the applicant’s mother requested his release on bail given, in particular, the deterioration of his psychiatric condition. That request was apparently rejected. On the same date the Kitsman Court assigned an inpatient forensic psychiatric examination of the applicant to be conducted by the Lviv Regional Psychiatric Hospital. It was to establish whether the applicant was suffering from any psychiatric disease, whether he required enforced medical treatment and, if he was ill, since when. On 1 December 2011 the Chernivtsi Regional Department of the State Penitentiary Service wrote to the applicant’s mother that the applicant could not be transferred for the examination, because the SIZO administration had not received the respective ruling of the Kitsman Court. On an unspecified date the applicant was transferred to the Lviv Psychiatric Hospital. On 25 January 2012 a report on the forensic psychiatric expert examination of the applicant was issued. It stated that, as of the time of the examination, he was suffering from a chronic schizoaffective disorder of a mixed type in an acute stage and that he could not realise his actions or control them. Accordingly, his enforced medical treatment was recommended. As to the issue of his sanity at the time of the committal of the offences incriminated to him, it was to be established after his treatment. On 21 March 2012 the applicant’s mother complained to the Kitsman Court that his forensic psychiatric examination had not established when exactly the applicant had fallen ill and what had been his psychiatric condition when he had confessed to having committed criminal offences. She also noted that the case file contained her complaints concerning the injuries to the applicant’s head and legs, which she, as well as many other witnesses, had observed in August 2011. According to her, it was the evidence of the applicant’s torture in police custody. On 28 March 2012 the Kitsman Court ordered a repeated forensic psychiatric expert examination of the applicant with a view to answering the following questions: (1) whether the applicant had been aware of his actions and could control them at the time of the committal of the crimes incriminated to him; (2) whether he could be regarded legally accountable at the time of the examination; (3) whether he was suffering from any psychiatric diseases and, if so, whether he was to be assigned disability on that account; (4) whether the applicant’s psychiatric disease had been triggered by the circumstances of his detention; (5) what treatment he required; and (6) whether enforced medical treatment was to be applied. In April 2012 the applicant’s mother complained to various authorities that the psychiatric disease of the applicant was the result of his ill ‑ treatment, that the SIZO administration had been refusing to administer to him the plant extracts and homeopathic medicines she had bought for him and that they continued to administer him neuroleptics, from which his mental state was only deteriorating. On 11 April 2012 the Kitsman Court severed the criminal case in so far as it concerned the applicant and stayed the proceedings pending his recovery. On 19 April 2012 it sent the case file to the Ukrainian Research Institute of Social and Forensic Psychiatrics in Kyiv with a view to the repeated psychiatric examination of the applicant. On 5 May 2012 the applicant was transferred to the Kyiv SIZO. On 16 May 2012 the Kitsman Court delivered its verdict in respect of four persons, who were considered to be the applicant’s accomplices. The verdict in question mentioned the applicant’s name and defined his role, often as leading, in the criminal offences under examination. The applicant’s mother tried, without success, to appeal against the aforementioned verdict. On 23 May 2012 the Chernivtsi Regional Prosecutor’s Office wrote to her, apparently in reply to her complaints of the applicant’s ill-treatment, that the Chernivtsi SIZO had not committed anything illegal and that there were no reasons for the prosecution to intervene. It was also noted in the letter that it was impossible to provide the applicant’s mother with a copy of the report of his initial medical examination upon his arrest on 12   April 2011, because the applicant had been admitted to the Chernivtsi SIZO on 22   April 2012 (apparently, it was a misprint, and “22   April 2011” was meant). On 6 June 2012 the governor of the Kyiv SIZO wrote to the applicant’s mother that the applicant’s psychiatric condition had deteriorated on 15   May 2012 and that a specialised psychiatric brigade had been called. They had administered some sedatives to him. On 7 June 2012 the Kitsman Court issued another ruling assigning a repeated forensic psychiatric examination of the applicant (the one ordered on 28   March 2012 had not been implemented because of some unspecified objections from the applicant’s mother). The court posed the same six questions to the experts as before (see above). On 3 July 2012 the applicant was transferred to the Kyiv City Centre of Forensic Psychiatric Examinations. On an unspecified date his forensic psychiatric examination was completed. The case file as it stands does not contain a copy of the examination report or any information about its conclusions. On 19 November 2012 the Kitsman Court ordered the applicant’s enforced psychiatric treatment. On 24 December 2012 the applicant was transferred to the Chernivtsi Regional Psychiatric Hospital pursuant to the above ruling. On 20 June 2013 a panel of doctors of the aforementioned hospital decided that the applicant’s treatment be continued. On 15 July 2013 the applicant was assigned disability of a second degree (medium) on account of a schizoaffective disorder. On 26 July 2013 the applicant’s mother asked the Shevchenkivskyy District Court of Chernivtsi to institute proceedings with a view to depriving the applicant of his legal capacity. The case file does not contain any information on further developments. B.     Relevant domestic law The relevant domestic law can be found, in particular, in the Court’s judgment on the case of Barilo v. Ukraine (no. 9607/06, §§ 49 and 50, 16   May 2013). COMPLAINTS The applicant complains under Article 3 of the Convention that he was subjected to physical ill-treatment and psychological pressure in the police custody, which led to his psychiatric disorder. Additionally relying on Article 13, he also complains that there was no effective domestic investigation into the matter. The applicant further complains under Article 5 §§ 1 and 3 that his detention was unlawful and lengthy, and that the court ignored his requests for a less intrusive preventive measure. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?   2.     Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (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.     Was the applicant’s detention in compliance with Article 5 § 1 of the Convention?   4.     Was the applicant’s detention compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?   The Government are also requested to provide the Court with a copy of the following documents: -        the applicant’s medical file, including but not confined to the report on his initial medical examination following his arrest on 11 April 2011 and any further reports on such examinations undertaken at each transfer of the applicant from one detention facility to another; -        the report on the applicant forensic psychiatric expert examination ordered on 7 June 2012; -        all the complaints by the applicant or his representatives in respect of his alleged ill-treatment and the authorities’ decisions or replies; -        all the missing documents on the applicant’s detention; -        all other documents of relevance.