European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40795/04
by Roman Vladimirovich DEYNEKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 March as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 4 November 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Roman Vladimirovich Deyneko, is a Ukrainian national who was born in 1986 and lives in Kivsharivka, Kharkiv Region, Ukraine.

A.  The circumstances of the case

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

On 7 January 2002 a certain F. was found dead in his apartment and some of his property appeared to have been stolen.

On 18 January 2002 the applicant, a minor at that time, was arrested on suspicion of F.'s murder and theft of his property. On the same day the applicant was charged with the above crimes and remanded in custody.

According to the applicant, he was beaten by police in January 2002. However, he did not provide any documents in support of his allegations.

On 15 April 2004 the Kupyansk District Court (“the District Court”) found the applicant guilty of F.'s murder and theft of his property, and sentenced him to six years' imprisonment.

On 11 February 2005 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 15 April 2004 and ordered a retrial, since the District Court had failed to make a video record of the court hearing, in spite of the applicant's request that it do so.

According to the applicant, on 15 February 2006 he was beaten by police when he arrived at the Kupyansk Temporary Detention Centre (Ізолятор тимчасового тримання м. Куп'янськ). On 17 February 2006 an ambulance was called for the applicant. Following the applicant's examination, the doctor revealed, inter alia, a bruise to the dorsum of his nose. In addition, the applicant also provided the Court with a copy of a written testimony by his cell-mates, L., G. and S., confirming that he had been beaten by police on the above-mentioned date.

The applicant further submits that during the trial proceedings before the District Court, the latter ordered the local Prosecutor's Office to carry out criminal inquiries into his allegations of ill-treatment. On an unspecified date before April 2006 the local Prosecutor's Office decided that there was no prima facie case of ill-treatment and refused to institute criminal proceedings in respect of the applicant's complaints. The applicant did not provide a copy of that decision. It is also not clear whether the applicant challenged that decision before the domestic courts.

On 28 December 2006 the District Court found the applicant guilty of the aforesaid crimes and sentenced him to nine years' imprisonment. It also pointed out, inter alia, that it “[had] examined the applicant's allegations of ill-treatment several times but they [had] proved to be not arguable”.

The applicant appealed complaining, inter alia, that he had been subjected to ill-treatment during pre-trial investigation.

On 20 December 2007 the Court of Appeal reduced the applicant's sentence to six years and exempted him from the responsibility for theft in view of the statute of limitation. Referring to inquiries held by prosecutor and the District Court, the court rejected the applicant's allegations of ill-treatment as unsubstantiated.

The information as to whether the applicant has appealed in cassation against this decision is not available.

On 18 January 2008 the applicant was released as having served his sentence.

B.  Relevant domestic law

The text of Article 156 of the Code (periods of detention during an investigation) is summarised in the case of Nevmerzhitsky v. Ukraine (no. 54825/00, § 53, 5 April 2005).

COMPLAINTS

Without relying on any provision of the Convention, the applicant complains that his pre-trial detention was unlawful. He also complains about the length of his pre-trial detention and the length of the criminal proceedings against him.

Further, the applicant complains under Article 3 of the Convention that police subjected him to physical and psychological pressure during pre-trial investigation and on 15 February 2006.

Referring to Article 6 § 1 of the Convention, the applicant challenges the outcome of the proceedings against him.

Finally the applicant relies on Article 10 of the Convention, alleging that he was not provided with a copy of the judgment against him. The applicant also relies on this provision with regard to the first-instance court's refusal to make a video record of the court hearing.

THE LAW

1.  The applicant complained, without relying on any provision of the Convention, about the length of his pre-trial detention and the length of the criminal proceedings against him. The Court considers that these complaints should be examined under Articles 5 § 3 and 6 § 1 of the Convention, which are the relevant provisions and which provide, in so far as relevant, as follows:

Article 5 § 3

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

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 ...”

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 the Court, to give notice of this part of the application to the respondent Government.

2.  The applicant further complained under Article 3 of the Convention about the ill-treatment by the police he had been subjected to during pre-trial investigation and on 15 February 2006.

The Court takes the view that the applicant has failed to prove that he made use of the court procedure specifically designed to challenge the outcome of the investigation into his complaints of ill-treatment and to attribute responsibility for alleged beatings or afford redress for an alleged breach of Article 3 of the Convention, rather than raising these complaints in the course of the criminal proceedings against him which were designed to find him innocent or guilty of the criminal charges levelled against him (see Belevitskiy v. Russia, no. 72967/01, §§ 61 and 63, 1 March 2007, and Yakovenko v. Ukraine, no. 15825/06, § 72, 25 October 2007). In particular, the applicant neither provided the Court with copies of the District Court's order for the local Prosecutor's Office to carry out criminal inquiries into his allegations of ill-treatment and the prosecutor's decision not to institute criminal proceedings as a result of those inquiries, nor did he inform the Court as to whether he had challenged that decision before the domestic courts.

Accordingly, the Court finds that this complaint must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

3.  The Court has examined the remainder of the applicant's complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints under Articles 5 § 3 and 6 § 1 of the Convention concerning the length of the applicant's pre-trial detention and the length of criminal proceedings against him;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Rait Maruste
Registrar President