European Court of Human Rights

 

 

 

FIFTH SECTION

Application no.3466/09
Viktor VasilyevichZALEVSKIY
against Ukraine
lodged on 19 December 2008

STATEMENT OF FACTS

 

The applicant, Mr Viktor Vasilyevich Zalevskiy, is a Ukrainian national, who was born in 1964 and lives in Vinnytsya.

A.  The circumstances of the case

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

1. Background to the case

On 21 November 1995 the applicant was provided with a flat by the local authorities in the city of Vinnytsya.

On 1 December 1995 the applicant married S. and they began to live together in that flat.

On 22 December 1997 their son was born.

On 13 March 2001 the couple divorced, but none of them wished to vacate the flat.

According to the applicant, since then his former wife repeatedly required him to sell the flat. As he refused to do so, he received threats from S., her relatives and certain police officers. Because of the scandals, frequently arising between the former spouses living in the same flat, S. often called the police to handle the disputes.

2. Events of 14 and 15 February 2006 as described by the applicant

At about 11 p.m. on 14 February 2006 police officers arrived at the applicant’s flat after they received a call from S. complaining about the applicant.

The applicant refused to let the police officers in as they did not show their ID cards, did not present themselves and it had been too late while the light in the corridor was turned off.

The police decided to enter by force but failed to do so after having broken one of the door locks. They left and the applicant went to sleep.

At about 2 a.m. on 15 February 2006 two brothers of S. arrived and the applicant opened the door. The brothers burst in together with three police officers and started to beat the applicant. The applicant did not resist. At a certain moment, while beating the applicant, they twisted his right hand and broke it. Then they cuffed his hands and took him to the police station.

At the police station the applicant was further beaten by one of S.’s brothers, whose actions were approved by the police officers. However, as the broken hand was bleeding, they decided to call an ambulance.

3. Treatment in hospital

The same night the applicant was taken to hospital. He was diagnosed with open fracture of his right hand, neuritis of the radial nerve, strangulation of soft tissues, and bruises to both wrists.

The applicant was operated on the hand and stayed in the hospital till 1 March 2006. However, the function of his right hand was not restored.

4. Domestic proceedings

On 20 February 2006 the applicant complained to the Zamostyanskyy District Prosecutor’s Office of Vinnytsya (“the district prosecutor’s office”) on account of his ill-treatment by the police officers and the brothers of his former wife.

On 14 March 2006 the assistant prosecutor of the district prosecutor’s office refused to open an investigation in connection with the alleged ill-treatment. He noted that there had been no corpus delicti in the actions of the police officers.

On 28 March 2006 the district prosecutor quashed that decision as unfounded and ordered additional “pre-investigation” enquiries.

On 3 April 2006 the district prosecutor’s office received the internal inquiry police report according to which the applicant had sustained the injuries when falling to the ground.

On 4 May 2006 the district prosecutor’s office received a forensic medical examination report stating that the applicant’s injuries were of a medium gravity.

On 6 May 2006 the assistant prosecutor of the district prosecutor’s office again refused to open an investigation in connection with the alleged ill-treatment. He stated that the actions of the police officers had not constituted a crime.

On 9 June 2006 the Vinnytsya Region Prosecutor’s Office quashed that decision as unfounded and remitted the case to the district prosecutor’s office for additional “pre-investigation” enquiries.

On 28 August 2006 the district prosecutor’s office received a forensic medical examination report stating that the open fracture of the applicant’s right hand could have occurred by way of twisting his hand as claimed by the applicant.

On 26 September 2006 the assistant prosecutor of the district prosecutor’s office again refused to open an investigation in connection with the alleged ill-treatment. He noted that there had been no corpus delicti in the actions of the police officers.

On 28 November 2006 the Staromiskyy District Court of Vinnytsya quashed the decision of 26 September 2006 as unsubstantiated and ordered additional “pre-investigation” enquiries.

On 12 February 2007 the district prosecutor’s office again refused to open an investigation in connection with the alleged ill-treatment.

According to that decision, the investigator established the facts as follows. In the evening of 14 February 2006 the local police station received a telephone notification that there was a quarrel in the applicant’s flat. At about 11 p.m. three police officers arrived at the flat but could not enter as the applicant refused to open the door. The police officers could hear a woman and child crying. In particular, the woman was crying that the applicant was holding a knife and threatening to kill her. The woman was asking the applicant to open the door on several occasions, but to no avail. Police officers attempted to negotiate with the applicant till 2 a.m. of the next day. Two neighbours were standing nearby and observing the situation. By that time two brothers of S. arrived and asked the applicant to open the door claiming that the police had left. When he opened the door the police officers and the brothers burst into the flat pushing the applicant. The latter fell on the chair and might have received some bruises documented later in the hospital. Immediately the police officers started to cuff his hands. As the applicant resisted the two brothers had to assist the police officers. Once the applicant was brought to the police station he started to complain about the pain in his right hand. Therefore, he was taken to hospital for being provided with the necessary treatment. On 21 September 2006 the police instituted criminal proceedings against the applicant for threatening S. to kill her.

Relying on these facts, the investigator found that the police officers and the two private persons had tried to arrest the applicant in order to stop his unlawful conduct. As the applicant had been resisting the police officers, the recourse to the physical force had been strictly necessary. The injuries had not been inflicted intentionally. The investigator concluded that in those circumstances there had been no corpus delicti in the actions of the police officers and of the two brothers of the applicant’s former wife.

On 23 March 2007 the Staromiskyy District Court of Vinnytsya upheld the decision of 12 February 2007 as lawful.

On 17 May 2007 and 12 July 2008 the Vinnytsya Region Court of Appeal and the Supreme Court, respectively, upheld the decision of the first-instance court of 23 March 2007.

B.  Relevant domestic law

The relevant domestic law can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).

COMPLAINTS




  The applicant complains that he was ill-treated by police officers and private persons and that there was no effective investigation in this respect.




  The applicant complains of the violations of his right to life and right to liberty.




  The applicant complains that his right to respect for his home was not ensured.




  The applicant also complains that there was a breach of his right to a fair trial.

 

QUESTIONS TO THE PARTIES

 




   Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?

 




  Having regard to the procedural protection from ill-treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

 

The Government are invited to provide copies of the documents concerning the domestic proceedings in respect of the applicant’s allegation of ill-treatment, including the decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing those decisions.