Last Updated on November 19, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 54630/13
Dmitriy Valentinovich GORYANOY
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 15 October 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 20 August 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, MrDmitriyValentinovichGoryanoy, is a Ukrainian national who was born in 1983 and lives in Nikopol. He was represented before the Court by Mr S. Moysak, a lawyer practising in Nikopol.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 3 August 2010 the applicant was arrested on suspicion of possession of illegal drugs, which at the time was classified as an administrative (minor) offence. According to him, the police planted a packet of cannabis on him in revenge for his refusal to be their undercover agent in a controlled drug-purchase operation. On 12 August 2010 the above-mentioned charge was re-classified as a criminal offence.
4. On 6 August 2010 the applicant wrote “a statement of surrender to the police” confessing to one theft. On 11 August 2010 criminal proceedings were instituted against him in that regard.
5. On 12 August 2010 the applicant confessed to another count of theft.
6. On the same date he signed a report confirming that his procedural rights, including the right to legal defence, had been explained to him. He stated therein that he preferred to represent his interests himself.
7. According to the applicant, during his detention in Nikopol police station from 3 to 12 August 2010 police officers beat him on the head, torso and back, and threatened him with a rape with a rubber truncheon, with a view to forcing him to confess to some criminal offences which he had not committed.
8. On 12 August 2010 the applicant was transferred to Nikopol Temporary Detention Centre (“the ITT”). According to him, his medical examination upon arrival there documented some injuries, which he explained to the doctors as not related to his time in police custody. The applicant did not provide the Court with any details as regards his injuries and his related explanations at the domestic level.
9. On 13 August 2010 the Nikopol Town Court (“the Nikopol Court”) remanded the applicant in custody pending trial.
10. In September and October 2010 the applicant confessed to several additional counts of theft. He also signed waivers of legal assistance. According to him, he did so as a result of threats and insults by the police.
11. On 2 December 2010 a lawyer was appointed for the applicant at his request.
12. On 11 August 2011 the applicant had his lawyer replaced.
13. On 11 January 2012, during a court hearing, the applicant complained that he had incriminated himself “under psychological pressure” from the police. The court ordered prosecutorial investigation into the matter.
14. As indicated in the verbatim record of one of the court hearings in January 2012 (the exact date is illegible in the available copy), the applicant stated that during his detention in Nikopol police station between 3 and 12 August 2010 he had been free to go out daily to buy food.
15. On 3 and 6 July 2012 the Nikopol town prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s complaint, having questioned the applicant and the police officers concerned.
16. On 7 July 2012 the Nikopol Court found the applicant guilty of two counts of theft and possession of illegal drugs and sentenced him to six years’ imprisonment. In setting the sentence, it took into account the fact that previously , on 21 May 2010, the applicant had been convicted on similar charges and had been sentenced to five years’ imprisonment, suspended for three years. The Nikopol Court acquitted the applicant in respect of some other counts of theft for want of evidence.
17. The applicant and his lawyer appealed. They alleged, in particular, that unlawful investigation methods had been applied to the applicant: specifically that he had been subjected to “physical and psychological coercion” during his detention from 3 to 12 August 2010. The applicant also argued that he had not committed the criminal offences of which he had been found guilty.
18. On 18 December 2012 the Dnipropetrovsk Regional Court of Appeal upheld the judgment of the first-instance court. It held, in particular, that the applicant’s allegations of ill-treatment in police custody had been duly investigated and had been rightly dismissed as unfounded.
19. On 15 January 2013 the applicant’s lawyer challenged the lower courts’ decisions before the Higher Specialised Court for Criminal and Civil Matters (“the Higher Specialised Court”) in what he titled as “an appeal”.
20. On 22 January 2013 the Higher Specialised Court rejected the above-mentioned appeal without examining it on the merits on the grounds that the requisite procedural formalities had not been complied with. Firstly, at that stage of proceedings it was possible to lodge only “an appeal on points of law”, but not “an appeal”; secondly, the lawyer had not enclosed duly certified copies of the judgment and the appellate court’s ruling; and, lastly, he had failed to specify the nature of the violation on the part of the court of appeal and to provide relevant substantiation. It was indicated in the ruling that the lawyer had one month to make the necessary corrections.
21. On 19 February 2013 the applicant’s lawyer repeatedly applied to the Higher Specialised Court – this time with a document entitled “an appeal on points of law”. Its content was fully identical to that of the appeal of 15 January 2013 (see paragraph 19 above).
22. On 5 March 2013 the Higher Specialised Court dismissed the above‑mentioned appeal on points of law without examining it on the merits on the grounds that the lawyer had failed to rectify all the shortcomings pointed out in the ruling of 22 January 2013 (see paragraph 20 above).
COMPLAINTS
23. The applicant raised a number of complaints under Articles 3, 5, 6 and 13 of the Convention.
THE LAW
A. Complaints under Article 3 of the Convention
24. The applicant complained, relying on Articles 3 and 13 of the Convention, that he had been ill-treated by the police in August 2010 and that no effective investigation of his complaints had been carried out. He also complained under Article 3 that: the conditions of his detention and transportation during the trial had been inappropriate; and that he had not been provided with the necessary nutrition and medical assistance. All the above complaints fall to be examined under Article 3 of the Convention only, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
25. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof to provide a satisfactory and convincing explanation may be regarded as lying with the authorities (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).
26. That being so, applicants are expected to submit at the very least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, for example, Kushnir v. Ukraine, no. 42184/09, § 102, 11 December 2014, with further references). Such evidence might include eyewitness statements or any documents showing that the applicant had entered the police premises in good health but left them having sustained injuries (see, for example, Gorbatenko v. Ukraine, no. 25209/06, § 120, 28 November 2013).
27. Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation where an individual raises an arguable claim of ill-treatment (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII).
28. Turning to the present case, the Court notes that the applicant’s allegations of ill-treatment are limited to vague and general statements, devoid of any factual details and not supported by any evidence. In such circumstances he has not substantiated his claim that he was ill-treated by agents of the State (see Kushnir, cited above, § 106).
29. The Court observes that the applicant’s allegations at the domestic level appeared equally general and vague. They cannot therefore be regarded as amounting to an arguable claim of serious ill-treatment triggering the procedural obligation under Article 3 of the Convention for the State to conduct an effective investigation into them (see Gavula v. Ukraine, no. 52652/07, § 61, 16 May 2013; Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013; and Kravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014).
30. The Court further notes that the applicant’s complaints concerning the conditions of his detention are likewise vague and wholly unsubstantiated.
31. It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaints under Article 5 of the Convention
32. The applicant also complained, under Article 5 §§ 1 and 3, that his detention between 3 and 12 August 2010 had been unlawful and that the duration of his pre-trial detention had been unreasonable. The provisions relied on read as follows in the relevant part:
“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;
…
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
…”
33. According to the well-established case-law of the Court, the date of the “final decision” for the purpose of Article 35 § 1 of the Convention in connection with a period of the pre-trial detention is the date on which the charge is determined by a court at first instance (see, for example, Tutar v. Turkey (dec.), no. 45008/08, 25 August 2015, with further references).
34. In the present case the applicant was convicted at first instance on 7 July 2012 (see paragraph 16 above), whereas he introduced his application on 20 August 2013, that is to say more than a year later.
35. Accordingly, this part of the application was introduced out of time and must be rejected for non-compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Complaints under Article 6 of the Convention
36. The applicant further complained that he had been denied a fair trial and that the length of the criminal proceedings against him had been unreasonable. He relied on Article 6 §§ 1 and 3 (c) and (d), which reads as follows in the relevant parts:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by [a] tribunal…
…
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
…”
1. Fairness
37. According to the Court’s case-law, Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, with further references).
38. In the present case the Higher Specialised Court refused to examine the appeal on points of law submitted by the applicant’s lawyer on the grounds that he had failed to rectify the earlier indicated shortcomings (see paragraph 22 above). The Court does not discern any indication of arbitrariness in the domestic court’s reasoning. The Court also observes that the lawyer did not even attempt to comply with the Higher Specialised Court’s instructions and merely re-introduced the same text, which had earlier been criticised (see paragraph 21 above; and, for a comparable example from the case-law, see Wojciechowski v. Poland (dec.), no. 23362/02, 13 December 2005).
39. The Court therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
2. Length
40. The applicant complained that the length of the criminal proceedings against him had been excessive.
41. Having regard to its case-law on the subject (see, for example, Merit v. Ukraine, §§ 72-76, no. 66561/01, 30 March 2004), the Court considers that the length of the proceedings in question, namely about two and a half years, was not excessive or unreasonable.
42. The Court therefore finds that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 November 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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