• Research / The right to liberty and security
• Research / The right to a fair trial
A brief description of KHPG strategic litigations for 2013
1. In the second half of 2013 the European Court delivered 8 judgments in the SLC
1. Bandaletov v. Ukraine (no. 23180/06)
The Applicant, Gennadiy Vitalyevich Bandaletov , is a Ukrainian national, who was born 1961 and is currently serving a life sentence in Ladyzhynska Prison no. 39.
20 April 2005 Mr and Ms L., the applicant’s upstairs neighbours, were killed in their apartment. On 21 April 2005 a criminal investigation was launched into the murder as having been committed by unknown persons.
The applicant was questioned, and confessed to the double murder. All the aforementioned statements began with a note that the requirements of Article 63 of the Constitution had been explained to their author. On 22 April 2005, at 11.30 a.m., the applicant was arrested as a suspect. He wrote in the arrest report that he had no statements or complaints to make. From noon to 1 p.m. on 22 April 2005 the applicant was questioned in the lawyer’s presence and signed a typed summary of his account of the events of 20 April 2005, similar to that given on 21 April 2005, as being accurate and complete. At 4.30 p.m. on 22 April 2005 the applicant was placed in a cell at the Kerch Temporary Detention Centre (“the ITT”).
On 29 April 2005 the applicant was formally charged with double murder. During his questioning on 30 April 2005, in the presence of his lawyer, he again repeated his confession. On the same date the pre-trial investigation was declared complete. The applicant and his lawyer signed in confirmation of having studied the investigation file. According to handwritten notes by both of them, they had no statements or remarks to add.
On 7 September 2005 the Crimea Court found the applicant guilty as charged and sentenced him to life imprisonment (which was to run as from 22 April 2005). The applicant appealed in cassation. He submitted that the first-instance court had distorted his motives and the facts of the case, ignoring the allegedly aggressive and provocative behaviour of the victims and wrongly concluding that he had murdered them while drunk. He stated that he had drunk alcohol only after the murder. Furthermore, the applicant complained that his voluntary surrender to and cooperation with the police had not had any mitigating effect on his sentence. He also noted in this connection that he had no previous criminal record and that he had shown sincere remorse. Lastly, he complained that he had not been legally represented at the initial stage of the investigation, and that the lawyers later appointed for him had behaved passively and failed to properly defend his interests.
On 8 December 2005 the Supreme Court dismissed the applicant’s cassation appeal as unfounded.
On 31 October 2013 the ECtHR delivered its judgment. The Court has found no violation of the §§ 1 and 3 (c) of the Article 6 of the Convention.
2. Belousov v.Ukraine (no. 4494/07)
The applicant is Mr Vyacheslav Nikolayevich Belousov, Ukrainian national, born in 1979 and lives in Kharkiv.
At about 11 a.m. on 18 July 2005 several police officers in civilian clothes came to the hostel where the applicant lived, and invited him to come with them to their office. The applicant followed the officers, who took him to the Kominternivskyy District police station. On arrival the applicant was notified that the police had received complaints from two mothers implicating him in sexual abuse of their minor daughters, and was questioned on this matter. At about 5 p.m. on the same day the applicant confessed to the offence and signed permission for the police to inspect his home.
At about 6 p.m. seven or eight police officers, including those who had questioned the applicant, took him back to the hostel, examined his room, seized a bed cover, a rug and some of the applicant’s personal belongings, and brought the applicant back to the police station. No documentary record of his arrest was drawn up at that stage.
At about 7 p.m. on 19 July 2005 the applicant, who was still at the police station, had a first meeting with a lawyer, hired for him by his relatives. At about 8.40 p.m. on the same date the police investigator B. drew up an arrest report, stating that the applicant had been arrested at that hour as a crime suspect on the basis of Article 115 of the Code of Criminal Procedure.
On 22 July 2005 the applicant was brought before a judge of the Kominternivskyy District Court of Kharkiv, who remanded him in custody for ten days pending gathering of personal information to determine feasibility of his further detention.
On 29 July 2005 the applicant was released subject to an undertaking not to abscond. In September 2005 one of the two mothers who had made the complaint of sexual abuse of their daughters withdrew her complaint against the applicant, stating that it had been lodged under pressure from the police.
As to the investigation
During the evening of 18 July 2005 the concierge of the applicant’s hostel and three of his neighbours informed the Kharkiv Human Rights Group, that they had seen the applicant leaving the hostel with the police officers at about 11 a.m. that day. They noted that at that time the applicant had been sober, neatly dressed and in good health. They had also seen him some seven hours later, when the police had brought him back for his room to be searched. They had noticed that the applicant was limping, stooping, and had bruises and swellings on his face, and that his clothes were dirty and wrinkled. Some neighbours also mentioned that the applicant had arrived handcuffed and that the police officers had prevented him from explaining to the neighbours what was going on. At about 10 p.m. on the same date an unidentified person telephoned the police hotline, demanding an investigation of the applicant’s arrest and detention.
At about 10.30 p.m. on the same date M.K., the Kominternivskyy District Police Deputy Chief Officer, arrived to investigate the complaint received via the hotline, and interviewed the applicant, who complained that he had been ill-treated by the police. The Deputy Chief Officer also questioned the police officers, who stated that the applicant had injured himself.
At about 10 a.m. on 19 July 2005 the applicant was examined by a forensic expert, who certified that the applicant was suffering from minor bodily injuries. The expert recorded that according to the applicant these injuries had been inflicted by the police, while according to the police they were self-inflicted.
On 20 July 2005 the applicant, represented by his lawyer, lodged a formal complaint, requesting the Kominternivskyy District Prosecutor to institute criminal proceedings in respect of his unrecorded detention until 8.40 p.m. on 19 July 2005 and his ill-treatment. The applicant maintained that he had been tortured by a number of police officers. Subsequently the applicant supplemented his initial submissions, additionally complaining that on 18 July 2005 his home had been unlawfully searched.
On 1 August 2005 the District Prosecutor’s Office instituted criminal proceedings in respect of the applicant’s complaints.
On 7 December 2006 the applicant lodged his complaint with the ECtHR.
The applicant complained that he had been tortured by the police during his time in custody, in breach of Article 3 of the Convention. He also complained under Article 13 of the Convention that his allegations of torture had not been duly examined.
The applicant complained that his unrecorded detention on 18 and 19 July 2005 had been devoid of a legal basis. He also complained that his arrest in the evening of 19 July 2005 effected without a court order was in breach of applicable domestic law.
The applicant further complained that he had not been brought promptly before a judge following his arrest. He referred to Article 5 § 3 of the Convention in this respect
Lastly, the applicant complained that on 18 July 2005 the police had unlawfully searched his home.
On 7 November 2013 the ECtHR delivered its judgment. The Court unanimously decided that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegation of torture by the police; the applicant has been subjected to torture in violation of Article 3 of the Convention; there has been a violation of Article 5 §§ 1 and 3 of the Convention and Article 8 of the Convention.
3. Gorbatenko v. Ukraine (no. 25209/06)
The applicant, Mr Pavel Vladimirovich Gorbatenko, is the Ukrainian national who was born in 1978 is currently serving life-imprisonment sentence in prison.
On August 2004 the applicant was arrested and subjected to tortures by the police officers of Merefa police department. After his arrest the applicant was not provided with legal and medical aid thus he was not able to complain on ill-treatment to the prosecutor’s office for a long period of time.§
On 13 August 2004 the Kharkiv District Court remanded the applicant in custody pending trial.
According to the aforementioned ruling, the applicant was supposed to be detained in the Kharkiv Pre-Trial Detention Centre (SIZO). In reality, he however remained detained, till 21 August 2004, in the Temporary Detention Centre (ITT). The applicant explained this by the fact that there were still traces of ill-treatment on him and that some time was needed for those to disappear. His requests for medical examinations and assistance were allegedly ignored.
On 9 November 2011 the Kharkiv District Court found the applicant guilty of several counts of robbery and theft and sentenced to him to five years’ imprisonment. That sentence was however absorbed by his life imprisonment under the judgment of 13 April 2005 (see below).
In 2006 the applicant lodged the application l to the European Court of Human Rights (hereinafter - the ECtHR). In his application the applicant complained on violation of Articles 3, 5, 6 and 8 of the Convention.
On August 2012 the ECtHR decided to communicate the application to the Government of Ukraine. The questions for the parties provided by the ECtHR were related to violation of Article 3 of Convention in material and procedural aspects and concerning conditions of detention at the pre-trial detention facilities, violation of Article 6 § 1 of Convention concerning the length of proceeding.
Strategic Litigation Centre of the KHPG (hereinafter – the SLC) has provided legal aid for the applicant when prepared the reply on the Government’s Observations.
On 28 November 2013 ECtHR delivered its judgment in the case Gorbatenko v. Ukraine where the Court has found violations of Article 3 of the Convention concerning inadequate conditions of detention in the Sevastopol ITT, Dnipropetrovsk SIZO no. 3 and Kharkiv SIZO no. 27, Article 6 § 1 of Convention concerning the length of proceeding.
4. Karabet and Others v. Ukraine (nos. 38906/07 and 52025/07, 17 January, 2013)
On January 17, 2013 the ECtHR passed a judgment in the case Karabet and Others v. Ukraine having recognized the next violations of the Convention regarding to the 18 former prisoners of Izyaslav Penal Colony №31 in Khmelnytskyy oblast:
- the applicants (with the exception of the seventeenth applicant) have been subjected to torture in violation of Article3 of the Convention;
- there has been a violation of Article3 of the Convention on account of the lack of an effective investigation into the applicants’ allegation of torture (with the exception of the seventeenth applicant);
- there has been a violation of Article1 of Protocol No. 1 on account of the failure of the Izyaslav Prison’s administration to return to the applicants, with the exception of the seventeenth applicant,all their personal belongings.
The case is originated from the events of January 2007, when virtually all prisoners of the colony (more than 1,200 men) declared a hunger strike. They were protesting against systemic brutal violations of their rights on the part of the administration namely: arbitrary punishments, beatings and degrading treatment by staff, as well as the bad quality of food and medical care. After promise of the superior administration of the State Department for the Execution of Sentences (the Department) to change the situation for the better the inmate stopped their strike, but having realized that nothing was changed they renew the strike. Then a special unit was brought into the colony, with men in masks and military gear. They cruelty beat around 40 prisoners who had been considered as organizers of the strike resulting for the inmates to broken ribs, bones, noses, other bodily injuries, teeth knocked out, etc. Immediately following this they were divided into two groups and taken to the Rivne and Khmelnytsky pre-trial detention centers (SIZO), literally in the clothes they had on, with all their things left in the colony, where beating was continued. Having been forced for sign statements about absence of claims to the colony administration the prisoners were taken to other penal colonies to continue serving their sentences separately.
Having considering the case the Court noted that the protests by the prisoners were confined to peaceful refusals to eat prison food, without a single violent incident having been reported.
Although it had been impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant because of difficulties for the applicants to present evidence of such a kind to the Court, such unexpected and brutal actions by the authorities were grossly disproportionate in the absence of any transgressions by the applicants and manifestly inconsistent with even those artificial goals they declared they were seeking to achieve. As suggested by all the facts of the case, violence and intimidation were used against the applicants, along with some other prisoners, simply in retaliation for their legitimate and peaceful complaints. On these circumstances the Court has recognized the gratuitous violence resorted to by the authorities as intended to crush the protest movement, to punish the prisoners for their peaceful hunger strike and to nip in the bud any intention of raising complaints, and therefore the treatment o the applicants was subjected to must have caused them severe pain and suffering, within the meaning of Article 1, paragraph 1, of the United Nations Convention again Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Due to this the Court has found that the applicants were subjected to treatment which can only be described as torture.
It is noteworthy that the ECtHR has judged for the State to pay to seventeen applicants EUR 25,000 euros in respect of non-pecuniary damage.
5. Kvashko v. Ukraine (no. 40939/05, 26/09/2013)
The applicant was born in 1973 and lives in Kharkiv. In the evening of 1 May 2005 the applicant was taken to the Ordzhonikidzevskyy District Police Department. After having searched the applicant, the police officers found some brown grass. On 3 May 2005 the investigating officer questioned the applicant about a robbery which had taken place in the middle of April 2005, and the applicant allegedly confessed to committing it. On 4 May 2005 an expert concluded that the brown grass found on the applicant was not a narcotic and according to the Government, the applicant was released. On the same date criminal proceedings for robbery were instituted against the applicant and a number of other individuals. The applicant was arrested by an investigator on suspicion of committing robbery.
The applicant stated that during his detention between 1 and 3 May 2005 he had been subjected to psychological pressure and physical ill-treatment. In particular, he alleged that the police officers had put a plastic bag on his head and had beaten him. On one occasion he had been kicked in the left eye. He claimed that because of a previous head injury sustained at the age of 15 and the police beatings, his eyesight worsened.
After several medical examinations the applicant underwent surgery on his left eye only 1 year after he was arrested. In 3 months the applicant was again hospitalized and underwent another operation. His left eye was removed to avoid inflammation of the right eye.
The applicant complained to the ECHR on the lack of timely and adequate medical assistance. The Court stated that in the absence of a specialist finding that the applicant needed urgent treatment of his health problems while in detention or that the loss of the applicant’s eyesight was caused by the absence of appropriate medical treatment – whether urgent or ordinary – the Court cannot conclude that the applicant was not provided with adequate medical assistance in detention which caused him suffering in breach of Article 3 of the Convention.
The applicant also complained under Article 5 § 1 of the Convention that his administrative detention between 1 and 4 May 2005 and his arrest on 4 May 2005 had been unlawful. The applicant further complained under Article 5 § 3 of the Convention that he had not been brought promptly before a judge.
In this regard the Court ruled that it appeared that the applicant was placed in administrative detention to ensure his availability for questioning as a criminal suspect, which had been found on many occasions by the Court to be an arbitrary deprivation of liberty. The Court found no reasons to depart from these conclusions in the present case and recognized there was a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention between 1 and 4 May 2005.
The Court also noted that the applicant was in continuing detention which was not subjected to any judicial scrutiny until 6 May 2005. There was no objective justification for that delay. Therefore, it found a violation of Article 5 § 3 of the Convention in respect of the applicant’s right to “be brought promptly before a judge”.
6. Sergey Savenko v. Ukraine (no. 59731/09, 24/10/2013)
The applicant, Mr Sergey Alexandrovich Savenko is the Ukrainian national who was born in 1975 and currently lives in Kharkov.
In 2008 the applicant was serving a prison sentence in Temnivka no. 100 Prison, in the Kharkiv Region.
On 11 July 2008 the first deputy governor of the prison, O., took the applicant to a storage room and asked him for certain information about alleged unlawful activities on the part of other prisoners. When the applicant refused, O. cuffed the applicant’s hands behind his back, pushed him onto a mattress and put a plastic bag over his head. When the applicant chewed a hole in the bag, O. threw several mattresses on him and, presumably, jumped on them. The applicant lost consciousness.
On 15 July 2008, following a consultation with a lawyer who represented the Strategic Litigation Centre of the KHPG (hereinafter – the lawyer), the applicant complained to the prosecutor of ill-treatment. He further asked for medical assistance on account of injuries on his forearms allegedly caused by handcuffs.
On 25 July 2008 the prosecutor’s office responsible for supervising the lawfulness of the enforcement of sentences adopted a decision refusing to open an investigation into the applicant’s allegations of ill-treatment. The decision was taken as a result of a pre-investigation inquiry, which comprised of an examination of the statements of the applicant and his cellmate and the medical report of 18 July 2008.
The applicant’s lawyer challenged the decision of 25 July 2008 before the Kyivskyy District Court of Kharkiv.
On 12 May 2009 the court upheld the decision of 25 July 2008 as lawful and substantiated. It noted that the report of 23 March 2009 did not disprove the other evidence in the file suggesting that the injuries had been self-inflicted.
On 4 June and 14 December 2009 respectively the Kharkiv Regional Court of Appeal and the Supreme Court upheld the decision of the first-instance court.
In November 2009 the applicant’s lawyer lodged the application to the European Court of Human Rights (ECtHR) concerning the violation of Articles 3 and 13 of the Convention.
In March 2012 the ECtHR decided to communicate the application to the Government of Ukraine.
On 21 September 2012 the applicant’s lawyer had provided the ECtHR with his reply on the Government’s observations concerning admissibility and merits of the case.
On 1 October 2013 the ECtHR delivered its judgment in the case in which the Court recognized violation of Article 3 of the Convention both in substantial and procedural aspects, violation of Article 13 of the Convention.
7. Tarasov v. Ukraine (no. 17416/03, 31/10/2013)
Mr Aleksey Gennadyevich Tarasov (hereinafter - the applicant) is the Ukrainial national born in 1965.
On 13 January 2000 the applicant was arrested by police officers from the Makiyivka Police Department and taken to a police station. Between 13 and 25 January 2000 he was kept in police detention facilities, where he was severely beaten many times by the police, who forced him to confess to theft and robbery. When arresting him, the police used teargas. Then he was tied up and kicked, punched and beaten with a stick. He was taken to the police station, where the officers placed a plastic bag and then a gasmask on his head, causing him to suffocate. He was also constantly beaten. Then police officers fixed electric wires to his penis and right hand and administered electric shocks.
On 14 January 2000 an ambulance was called for the applicant who was in a state of weakness and was suffering from pain in the lumbar area and below his rib cage.. The applicant was taken to hospital for more detailed examination. Medical reports of the same date by the hospital doctors recorded abdominal trauma and bruise in the lumbar region.
The applicant was transferred to the SIZO on 25 January 2000.
On 25 May 2000 the Makiyivka Town Prosecutor’s Office questioned the doctors and police officers concerned and refused to institute criminal proceedings concerning the alleged ill-treatment, considering that it could not be established beyond reasonable doubt that the applicant had been ill-treated by the police. It was also claimed in the refusal that, according to the police, the applicant had pretended to be ill as he planned to escape and had therefore wanted to be taken to hospital to facilitate his escape.
On 2 August 2000 the Donetsk Regional Prosecutor’s Office quashed the decision of 25 May 2000 and ordered further investigation, having noted that the examination of the applicant’s complaint was incomplete.
On 7 September 2000 the Makiyivka Prosecutor’s Office refused to institute criminal proceedings for lack of proof of a crime. The refusal noted that there had been no proof that the applicant had been ill-treated and the evidence by the applicant’s cell-mates about the applicant’s ill-treatment had been contradictory and could not serve as a sufficient basis for the conclusion that the applicant had been ill-treated.
On 6 November 2003 the Tsentralno-Miskyy District Court of Makiyivka quashed the decision of 7 September 2000 and remitted the case for additional investigation.
On 15 June 2005 the prosecutor refused to institute criminal proceedings for lack of corpus delicti.
In 2003 the applicant filed an application to the European Court of Human Rights ((hereinafter – the ECtHR) in which he complained on violation of Articles 3 and 6 § 1, 6 § 3 (c, d) of the Convention.
The lawyer of the SLC provided legal assistance to the applicant during the consideration of his case by the ECtHR.
On 31 October 2013 the ECtHR delivered its judgment in which it recognized violation of Article 3 of the Convention, Article 6 § 1 and 3 (c, d).
8. Zubkova v. Ukraine (no. 36660/08, 17/10/2013)
The Applicant, Nina Antonovna Zubkova, is a Ukrainian national, who was born in 1937 and lives in Kharkiv, Ukraine
On 18 May 2002 the Applicant’s son, Mr Igor Zubkov, who was riding a bicycle, collided with a minibus at a crossroads in the city of Kharkiv. On 20 May 2002 he died from his injuries. On 21 May 2002 the local police instituted criminal proceedings in connection with the accident under Article 286 § 2 of the Criminal Code (negligent driving causing the death of a victim). Between September 2002 and October 2006 the investigation was closed and reopened on six occasions. The renewals were ordered by the supervising authorities after finding that the investigation had been incomplete and further steps were required (such as questioning witnesses, additional technical assessments, further examination of the scene of the accident, and clarification of facts in the light of new information). By a decision of 30 December 2007 the investingation was closed for lack of corpus delicti as regards the acts of the driver of the minibus. On 11 March 2008 the applicant was informed of that decision. On 30 March 2012 the applicant challenged the decision of 30 December 2007 before the Kyivskyy District Court of Kharkiv (“the District Court”). On 24 April 2012 the District Court dismissed the complaint as unfounded. The applicant appealed against that decision. On 24 May 2012 the Kharkiv Regional Court of Appeal quashed the decision of 24 April 2012 and remitted the case to the District Court for a fresh examination. The court of appeal noted in particular, that the conclusions reached by the investigator had not been properly substantiated by the material in the criminal case file and that the District Court had failed to give appropriate reasons for dismissing the applicant’s complaint. On 11 July 2012 the District Court quashed the decision of 30 December 2007 as unsubstantiated and ordered a further investigation. The District Court specified that during the investigation, it would be necessary to scrutinise the arguments put forward by the applicant, to assess the statements of certain witnesses properly and to carry out another auto-technical expert examination. The parties did not inform the Court whether that decision became final. Nor did they inform the Court about any further steps taken in the investigation.
The Court notes that between 2002 and 2006 the investigative authorities adopted numerous decisions discontinuing the investigation. Those decisions were, however, quashed by the supervising authorities, who considered that the investigation had been incomplete and that further steps were required. The repetition of such remittal orders discloses a serious deficiency in criminal investigation. It is relevant to note that in ordering additional investigations, the supervising authorities specified, inter alia, that additional measures were necessary in order to carry out a comprehensive investigation of the case, namely questioning of the witnesses, expert examinations, a reconstruction of events, and an examination of the arguments advanced by the victim’s relatives. The facts of the case therefore suggest that the investigative authorities did not take all the necessary steps in order to carry out a thorough investigation which would be compatible with the Convention requirements.
Even though there was a long period of inactivity on the part of the applicant, as suggested by the Government, the overall length of the criminal proceedings, while they were pending before the domestic authorities, does not appear to be justified. The Court notes in particular that, while the accident took place on 18 May 2002, the last decision to close the investigation – which was later challenged by the applicant – was taken only on 30 December 2007 and notified on 11 March 2008, that is almost six years after the accident. In this regard, the Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish.
The Court has found a violation of the procedural limb of Article 2 of the Convention.
2. In the following 12 cases lawyers of the SLC continued legal representation of the victims of torture in the European Court on the stage on communications with the Government of Ukraine.
1. Case of Dakus v. Ukraine
The applicant with her minor child lived in the municipal flat in Kalush City of Ivano-Frankivska Oblast on the permanent basis with his husband and his family. After the applicant’s divorce with her husband in 2004 she continued to live in the flat. When her former husband’s family had got a new flat she remained to live in the old flat. The applicant was evicted from her home together with her minor child by the state executor following the domestic judicial proceedings, without provision of any other dwelling several days before the New Year holidays at the end of 2006.
After these actions the applicant and her minor child were subjected to harsh living conditions. She had to rent the flats and pay for them on her own.
The applicant lodged a complaint to the ECtHR on the matter of violation of the right to respect her private life guaranteed by Article 8 of the European Convention on Human Rights. According to the practice of the this right includes the right to respect for the home of a person the inviolability of which is of absolute character.
In August 2013 KHPG lawyer has drafted a reply to the Government’s Observations in this case to the ECtHR on behalf of the applicant which is currently under consideration of the Court.
2. Case of Dolganin v. Ukraine
The applicant, Mr. Valeriy Nikolayevich Dolganin, is a Ukrainian national, who was born in 1972 and lives in the city of Kharkiv.
On May 3, 2005 the applicant was arrested at his home. According to the applicant, at 2:00 p.m. he was brought to a police station where he was handcuffed to a heater. At around 10:00 p.m. he was brought to the cabinet of an investigation officer. There he was put on the floor, his hands were handcuffed behind, he was beaten in his stomach, was put on a gas mask with air passage blocked and the cigarette smoke was blown into it. Such treatment continued for one hour and then the applicant was placed in a cell.
In the morning of May 4, 2005 the applicant was called an ambulance and transferred to a hospital. He was diagnosed with a blunt abdominal trauma. The applicant told the doctors that on 3 May 2005 he had fallen down.
On May 5, 2005 the applicant was discharged from the hospital. According to a medical certificate he was in a satisfactory condition. The applicant challenged this and said that he had been discharged on request of an investigation officer while he had needed surgery. On the same day the applicant underwent a forensic medical examination. It was noted that the applicant had no injuries. The copy of this conclusion is not available.
On May 6, 2005 the applicant was placed back to a hospital where he underwent surgery because of intestinal obstruction. The applicant told the doctors that on 3 May 2005 he had fallen down on a concrete block. The applicant’s condition was assessed as being of medium severity.
The applicant was discharged from the hospital on May 13, 2005. He was detained in the police station before being placed to a temporary detention centre on May 16, 2005.
On March 2 and September 28, 2006 the Ordzhonikidzevskyy District Prosecutor refused to institute criminal proceedings following the applicant’s complaints about ill-treatment. It was found that, according to the forensic medical examination of May 5, 2005, the applicant had had no injuries.
In April 2007 the applicant’s mother lodged the application to the European Court of Human Rights (ECHR) concerning the violation of Articles 3, 5, 6 and 13 of the Convention.
In June 2013 the ECHR decided to communicate the application to the Government of Ukraine.
On November 19, 2013 the applicant’s lawyer provided the ECHR with her reply to the Government’s observations concerning the admissibility and merits of the case.
3. Case Dolgikh v. Ukraine
The applicant, Mr Yuriy Mikhailovich Dolgikh, is a Ukrainian national who was born in 1974 and is currently serving a prison sentence in the BerdychivCorrectional Colony No. 70 (“the prison”).
Between 1995 and 1999 a number of crimes were committed in the Donetsk oblast by a gang, including multiple counts of murder, rape, robbery and theft.
On 20 February 1999 the applicant was arrested by the police and taken to the Police Temporary Detention Centre (“the ITT”) in Dnipropetrovsk. On 21 February 1999 the applicant was taken to the ITT in Makiyivka. According to the applicant, from 20 to 22 February 1999 he was tortured by the police, which included beatings, strangling and threatening with murder. As a result, the applicant confessed to having committed the crimes of which he was later convicted. Several people were arrested on suspicion of being members of the same gang. According to the applicant, during their questioning by the investigators the arrested people made self-incriminating statements under torture. Those statements also implicated the applicant.
During the trial the applicant confirmed that he had committed some of the crimes of which February 1999 alleging that they had been obtained under torture and ill-treatment to which he had been subjected on 20 February 1999 and during the ten days which had followed his arrest. Some of the applicant’s co-defendants also made similar submissions concerning their own statements.
On 21 August 2001 the Donetsk Court of Appeal found that the applicant and seven other people had belonged to a gang and had been guilty of a number of serious crimes which they had committed between 1995 and 1999, including several counts of aggravated murder, rape, robbery, theft and unlawful possession of arms. The applicant was sentenced to life imprisonment with confiscation of all his property.
In December 2001 the applicant appealed in cassation mainly challenging the factual findings and the application of the criminal law by the Court of Appeal.
On 11 November 2002 the applicant submitted a separate complaint to the Supreme Court, stating that his sentence was unlawful, as at the time when he had committed the crimes there had been no such punishment as life imprisonment, which had been introduced by the Act of the Parliament on 22 February 2000.
On 19 August 2004 the Supreme Court heard the case in the applicant’s and one of his co-defendants’ presence; a prosecutor was also present. The Supreme Court upheld the judgment of 21 August 2001, having changed the legal qualification of some of the applicant’s and one of his co-defendants’ criminal actions. As to the remaining part of the case, the Supreme Court found no violation of substantive or procedural law. As regards the applicant’s allegations of torture by the police, the Supreme Court noted that those allegations had been checked by the Court of Appeal with the findings of which, that the allegations were unfounded, the Supreme Court agreed.
On 9 September 2004 the applicant sent a letter to the ECtHR intending to lodge an official application against Ukraine. That letter and the applicant’s subsequent letters sent to the Court in 2004-2007 were accompanied by covering letters from the SIZO and later from the prison administration briefly summarising the nature of the correspondence dispatched.
According to the applicant, the administration of the SIZO also screened the letters sent to him by the Court and, for an unspecified period of time, the administration of the prison did not allow him to make or to keep copies of the letters sent to him by the domestic authorities and by the Court
In 2004-2007 the ECtHR invited the applicant to submit copies of various documents from the domestic case-file, including the courts’ decisions, his appeals and documents relating to the applicant’s complaints under Article 3 of the Convention. The applicant’s requests for such copies were often refused by the prison authorities and the domestic courts mainly for the reason of absence of legal provisions entitling the applicant to receive such copies. However, as time passed, the applicant obtained copies of many of the requested documents (he was either allowed to make a copy by hand or was given a printed copy) and submitted them to the ECtHR. In particular, in 2007 the applicant was allowed to make a copy of the report on his arrest dated 22 February 1999 by hand.
In his initial submissions of 10 September 2004 the applicant raises a number of complaints relating to his criminal prosecution.
In particular, the applicant complains that he was tortured by the police from 20 to 22 February 1999 and that he was subjected to ill-treatment from 22 February to 4 March 1999. According to him, no domestic investigation was carried out into those complaints.
The applicant further complains that the report on his arrest contained untruthful information – the police failed to mention that the applicant had been arrested on 20 February 1999 and the reasons given for the arrest had no factual basis.
The applicant also complains that his prosecution was based on forged material and illegally obtained evidence and that some of the investigative actions were carried out without the applicant having been assisted by a lawyer. The applicant also states that during the criminal proceedings he was not given sufficient opportunity to study the domestic case file; in particular, he could not study the minutes of the Donetsk Court of Appeal hearings. The applicant complains that his sentence was unlawful, as at the time when he had committed the crimes there had been no such punishment as life imprisonment. The applicant alleges that the publications concerning his criminal case before the trial commenced had been contrary to the principle of impartiality of justice.
The applicant complains that the police failed to return the objects seized during the search in his flat to their lawful owners. In particular, he states that he could not receive his photo album back.
For the above complaints the applicant invokes Articles 1, 3, 5 §§ 1 (c) and 3, 6 §§ 1, 2 and 3 (d), 7, 8, 10 and 13 of the Convention and Article 1 of Protocol No. 1.
In his submissions on 12 July 2008 the applicant complains about the allegedly unlawful confiscation and subsequent sale of his flat.
The applicant also complains that after the completion of the criminal proceedings he continued to be subjected to ill-treatment, torture and inhuman conditions of detention; that he was not provided with adequate medical assistance; that he was not allowed to meet with a lawyer; and that the authorities refused to investigate his complaints and to punish the alleged offenders; and that his correspondence was intercepted and monitored.
In his submissions in 2008 and 2009 the applicant complains about the restrictions on his family visits in the SIZO and the prison. He invokes Article 8 of the Convention in this regard.
The applicant complains under Article 6 §1 of the Convention about the unfairness and outcome of the proceedings before the administrative courts. In particular the applicant alleges that he was not provided with legal assistance.
Relying on the same provision of the Convention, the applicant complains about the unlawfulness of the judgment of the Constitutional Court of 26 January 2011.
Relying on Articles 10 and 34 of the Convention, the applicant complains that for a considerable period of time the authorities refused either to give him access to his domestic case file so that he could have obtained copies of documents for substantiation of the application or to provide him with such copies.
The applicant further complains under Article 34 of the Convention about the screening of the letters sent to him by the ECtHR and his inability to make or to keep copies of the letters sent to him by the domestic authorities and by the ECtHR.
The applicant complains that in the course of the criminal proceedings against him the rights of other people, including his mother and co-defendants, were violated by the authorities. The applicant also alleges that an unknown cellmate was beaten up in April 2008 by the prison guards.
17 September 2013 the Government presented their written observation on the admissibility and merits of the case.
On 27 November 2013 the Reply to the Government’s observations has been filed on behalf of applicant by the legal experts of the KHPG. The Court has not yet delivered a judgment in this case.
4. Case of Korneykova and Korneykov v. Ukraine
The applicants, Ms. Korneykova and Korneykov, a mother and her three-month-old child are Ukrainian nationals, who were born in 1990 and 2012 respectively and are detained in pre-trial detention facility in Kharkiv (SIZO).
The applicants consider that the conditions of their detention in the SIZO did not satisfy the requirements of article 3 of the Convention. The applicants describe their conditions of detention as follows: the cell is situated in semi-basement; lack of fresh air and natural light, lack of warm water and means of hygiene; the food is too poor for a nursing mother, duration of the walks is not sufficient, and one of their cell-mates is HIV-positive.
Besides, the applicants believe that a violation of Article 3 of the Convention has been in their case due to the lack of medical treatment in the SIZO. The second applicant suffered from phimosis and had developed an inflammation. No paediatrician was available in the SIZO. The first applicant had requested the penitentiary authorities to have the second applicant examined by a doctor, but received no answer. She also had lodged an oral request before the court concerning such a medical examination. Her request was rejected as the case-file contains a document certifying medical visit that took place on 13 August 2012. The first applicant states that her son was not examined by a doctor for the last two months.
On 31 August 2012 the legal expert of the KHPG on behalf of the applicants filed the request for application of interim measure under Rule 39 of the Rules of Court and indicate to the Government of Ukraine to transfer immediately the first applicant with her son in civic neonatology clinic, provide medical examination for the second applicant and medical treatment in the appropriate civic medical facility.
Upon request, the applicants and the Government provided (on 14 and on 18 September 2012 respectively) medical documents issued upon the medical examination of the second applicant that took place on 10 September2012. The documents confirmed that the second applicant had been diagnosed with physiological phimosis, allergodermia and dysplastic cardiopathy. No surgical or other urgent treatment had been prescribed. Hypoallergenic diet had been prescribed to the first applicant.
Upon the second request, on 8 October 2012 the Government provided the information concerning the applicants’ conditions of detention with several official statements signed by SIZO deputy heads, a record of the potable water analysis, and photographs of the cells. According to this information:
On 15 October 2012 the Court indicated under Rule 39 of the Rules of the Court to the Government to keep the applicants in conditions suitable for a small child and a nursing mother, inter alia, the Court indicated that the adequate medical supervision and assistance should be provided to the second applicant, for the duration of the proceedings before the Court.
On 26 October 2012 the legal expert of the KHPG on behalf of the applicants lodged complaint before the Court. The applicants stated that their rights provided by Article 3 of the Convention were violated due to poor conditions of the detention in the SIZO, lack of adequate medical care for the second applicant, content of the applicants in the metal "cage" in court hearings and use of handcuffs and chains in the hospital.
In October 2012 the Court invited the Government to submit written observation on the admissibility and merits of the case.
On 24 January 2013 the Government notifies the Court that during the applicant’s detention in the SIZO they had been remanded in the cell that is suitable for a small child and nursing mother. Moreover, according to the Government, a child was under constant medical supervision of the SIZO medical unit and pediatrician from civil hospital during the whole period of the applicant’s detention in the SIZO.
On 10 February 2013 lawyers of the KHPG on behalf of the applicants filed additions to the complaints before the Court.
On 4 June 2013 the Reply to the Government’s observations has been filed on behalf of applicant by the legal experts of the KHPG. The Court has not yet delivered a judgment in this case.
5. Case of Kushnir v. Ukraine
The applicant is a Ukrainian citizen. Since July 2009 he is being detained in Kyivskyi SIZO No. 13 as an accused in criminal case for committing sale of drugs.
The applicant suffers from a number of serious diseases including HIV infection of IV stage, viral hepatitis B and C, tuberculosis of the lungs and his spleen was removed. For health reasons, he cannot be kept in the conditions of SIZO where the adequate medical care isn’t provided to him. During his stay in the SIZO his weight decreased from 97 kilos to 54 kilos with his height of 188 cm, i.e. he was brought to extreme physical exhaustion. The antiretroviral therapy during his stay in the SIZO has never been provided.
In August 2009 the applicant filed an application to the European Court of Human Rights in violation of Article 3 (inadequate medical care) and Article 6 of the Convention (falsification of the evidence of the prosecution).
In 2010 after almost a year he was submitting petitions for release from serving a rest of the punishment because of a serious disease included into the List of Diseases which gave grounds for such a release, the district court released him upon petition of his lawyer. Currently, the procedure of communication with the Government is pending in this case.
In 2012 the Government submitted to the ECtHR observations, and in December 2012 – January 2013 the SLC lawyer prepared and submitted to the Court observations in reply to those of the Government. Now consideration of the case by the ECtHR is expected.
6. Case of Mitlenko v. Ukraine
In May 2002 the applicant who is a citizen of Ukraine and resident of Kyiv City was detained under a false pretext by the policemen of the department on combating drug trafficking of a district police department of Kyiv in connection with murder of a person.
After the applicant was taken to the district police department he was beaten and tortured. As a consequence, he wrote a voluntary surrender and as a suspect confessed in committing this crime, as well as provided testimony on the circumstances as regards the crime allegedly committed by him during the reconstruction of the circumstances and conditions of the event. The next day the investigator issued an official protocol on detention of the applicant on suspicion in committing intentional murder under aggravating circumstances.
Since the prosecution lacked the evidence to prove the guilt of the applicant the case was returned for additional investigation for five times: by Kyiv City Court of Appeal in December 2001, September 2002 and on September 26, 2005; by the Supreme Court of Ukraine in October 2004 and February 2007 and after the sentences of the court of appeal were cancelled - accordingly on May 12, 2004 and July 14, 2006.
On March 15, 2007 the Kyiv City Court of Appeal transferred the case to the prosecutor’s office of Kyiv. The preventive measure in the form of detention was applied to the applicant. In the course of the proceedings in the case, multiple referral of the case to the court together with the indictment and its referral back to conduct additional investigation there were numerous violations of the right of the applicant to freedom in the form of detention without extension of the terms by the court, as well as exceeding the maximum term of 18 month for the detention on remand during the pre-trial investigation.
In September 2007 a lawyer of the SLC filed the application to the European Court of Human Rights as regards violation of his rights envisaged by § 1, 3, 4 of Article 5 and § 1, 2, 3 of Article 6 of the Convention.
In 2008 he was sentenced to 6 years of imprisonment and as for now he has served his sentence. Currently, the procedure of communication with the Government is pending in this case.
In 2013 the lawyer continued communication with the ECtHR and submitted additional materials to the case docket.
7. Case of Ogorodnik v. Ukraine
The applicant, Mr. Maksym Anatoliyevych Ogorodnik, is the Ukrainian national who was born in 1983 and is presently serving his sentence in Berdychiv Penitentiary Establishment № 70.
The facts of the case, as submitted by the applicant, may be summarized as follows. On 16 July 2008 the applicant was detained on administrative grounds. On the same date he confessed to robbery with assault.
In July and August 2008 a number of criminal cases were opened against him and several other persons on suspicion of banditry, numerous counts of theft and armed robbery, money laundering, hooliganism, as well as illegal arms’ possession and handling.
The applicant wrote numerous confessions (including on 16, 17, 18, 19, 22 and 26 July, as well as on 3 and 12 August 2008). According to him, he did so under duress and without legal assistance.
He was allegedly ill-treated in the police custody on many occasions between 16 July and 5 November 2008.
According to the bill of indictment, the date of the applicant’s official detention as a criminal suspect was 25 July 2008.
In September and October 2008 he complained about his alleged ill-treatment in police custody to various authorities, including the General Prosecutor’s Office. His complaints contained detailed description of the events in question. He alleged, in particular, that he had been detained and ill-treated by the Vinnytsia Police Department for Combating Organized Crime from 16 to 26 July 2008, by the Vyshgorod Town Police Department from 26 July to 7 August 2008, and by the Brovary Town Police Department in the Kyiv region from 7 August to 11 September 2008.
His complaints were forwarded to the respective local prosecution authorities.
On 7 November 2008 the applicant underwent a medical examination which discovered bruises on his buttocks measuring 7 x 10 cm and 15 x 10 cm respectively. The doctors also documented sores on his wrists caused by handcuffs. The examination certificate referred to another sore having been discovered, but the notes are illegible.
On 7 and 19 November and 4 December 2008 the Kyiv Regional Prosecutor’s Office, as well as the Vinnytsia and Vyshgorod Town Prosecutor’s Offices, respectively, delivered rulings refusing to institute criminal proceedings against the police officers allegedly involved in the applicant’s ill-treatment for the lack of evidence of their guilt. The case file, as it presently stands, does not contain copies of these documents.
On 6 May 2009 the Staromiskyy District Court of Vinnytsia found the applicant guilty of numerous counts of aggravated theft and robbery and sentenced him to eleven and a half years’ imprisonment, as well as confiscation of all his personal property.
He appealed, submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse. Referring to his cooperation with the investigation, as well as the fact that he had a minor child, the applicant sought mitigation of his sentence.
On 16 July 2009 the Vinnytsia Regional Court of Appeal rejected his appeal.
The applicant further appealed on points of law. He submitted, in particular, that his conviction had been based on his self-incriminating statements obtained under duress and with substantial violations of the criminal procedural legal provisions (the case file does not contain a copy of his cassation appeal and its summary is taken from the ruling of the Supreme Court – see below).
On 26 February 2010 the Supreme Court rejected the applicant’s request for leave to appeal on points of law. As to his allegation of ill-treatment, it noted that the applicant had not raised this issue in his appeal and that he had maintained his confessions, having deciding to retract them only at the stage of the appeal on points of law.
On 5 May 2010 the applicant launched his complained before the European Court of Human Rights. In particular, he complained that he was subjected to ill-treatment while in hands of the police officers and SIZO staff members and that this ill-treatment was inflicted on him with the purpose to obtain confessions from him. He also contended that his allegations of ill-treatment had not been properly investigated and, therefore, his material and procedural rights under Article 3 of the Convention had been violated.
The applicant next complained under Article 6 that he was deprived of legal assistance at the early stages of the investigation; that the lawyers, whom he contracted later, did not duly perform their duties; that the courts dealing with his case were biased and the appellate court judges took a bribe from him; and that his conviction was generally unfair. He complains under the same provision about the length of the proceedings.
The applicant further complained that the confiscation ordered by the courts along with his conviction concerned property which did not in fact belong to him and to which he had no relation.
Lastly, he complained of some problems with the dispatching of his outgoing correspondence from the Pre-Trial Detention Centre.
On 12 December 2012 the Court invited the Government to submit its observations regarding the applicant’s complaints.
On 23 June 2013 the Reply to the Government’s observations were filed by the KHPG legal experts on behalf of the applicant. The Court has not yet delivered a judgment regarding this case.
8. Case of Oryekhov v. Ukraine
The applicant, Mr. Volodymyr Mykolayovych Oryekhov, is a Ukrainian national, who was born in 1987 and is currently serving his sentence in prison.
On the evening of 27 April 2009, on his way to a shop in Zasillya village, the applicant was stopped by police officers of the Zhovtenvyy District Police Department of Mykolayiv Region. They asked the applicant about his current place of residence and let him go. On his way back from the shop the applicant noticed the same police officers together with two young men. When he walked further along the street, the two men approached him and started to beat him. The applicant fell to the ground but the men continued to kick him. The men took money and two cell phones from the applicant and disappeared. The applicant returned to the shop, explained to the seller what had happened to him and asked to call the ambulance. He lost consciousness and came around in the hospital. The hospital reported about the incident to the police.
At 11 a.m. on 28 April 2009 the police visited the applicant at his friend’s flat enquiring about the incident. The applicant identified one of the police officers who had talked to him a day before and said that that police officer had also spoken to the attackers before the incident. The police then asked him to follow them to the police station. Instead, they took him to an abandoned building, walked up on the second floor and suggested that he might like to think over his statements and consider whether it was really necessary to complain about the incident. The applicant insisted that he would complain to the authorities. The police officers then started to beat him. At a certain moment the applicant was severely pushed to a window. As result he broke it through and fell out in the street. The applicant lost consciousness and came around in hospital.
At the hospital the applicant was diagnosed with concussion, injuries to the right side of the forearm, fractures of both heel bones and injury to lumbar vertebras.
On 30 April 2009 the Novovolynsk Town Court placed the applicant in pre-trial detention on charges of robbery.
On 22 June 2009 that court found the applicant guilty of robbery and sentenced him to six years’ imprisonment.
On August 2009 the applicant lodged the application to the ECtHR. He complained under Article 3 of the Convention that he was beaten up on 27 and 28 April 2009 and there was no effective investigation in that respect. He also complained that, in breach of Article 3 of the Convention, the pre-trial detention facilitates failed to secure him with special assistance which he needed in view of his physical disability. The applicant further complained under the same Convention provision that throughout his pre-trial and post-conviction detention the applicant had not been provided with requisite medical treatment.
On November 2012 the ECtHR decided to communicate the application to the Government of Ukraine. The SLC has provided legal aid for the applicant when prepared the reply on the Government’s Observations.
On 22 April 2013 the lawyer of the SLC prepared a reply on the Government’s
On 26 August 2013 the lawyer of the SLC prepared a reply on the additional Government’s Observations.
9. Case of Osmayev v. Ukraine
The applicant, Mr. Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981 and is currently detained in Odessa, Ukraine. The applicant is an ethnic Chechen.
On 8 May 2007 criminal proceedings were instituted against the applicant and several other ethnic Chechens, who resided in Moscow, the Russian Federation, at the material time, on suspicion of membership of a terrorist organization and participation in terrorist activity. In winter 2008, while under an undertaking not to abscond in connection with the above proceedings, the applicant left the Russian Federation and arrived in Ukraine.
On 4 January 2012 a private flat in Odessa, Ukraine, was set on fire as a result of an explosion. On 4 February 2012 combatants of the Security Service of Ukraine stormed the flat and arrested the applicant.
On 12 March 2012 the Security Service of Ukraine indicted the applicant of membership of a terrorist group, preparation of terrorist acts, unlawful possession of arms and explosives and intentional destruction of another’s property.
On 24 April 2012 the applicant applied for political asylum with the State Migration Service of Ukraine, maintaining that he had never been involved in any terrorist activities and his criminal prosecution in the Russian Federation was political repression in disguise.
On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in the applicant’s.
On 11 July 2012 the General Prosecutor’s Office of Ukraine consented to the applicant’s extradition. On 23 July 2012 the applicant appealed against the decision on his extradition.
On 3 August 2012 the Malynivskiy District Court of Odessa examined the applicant’s appeal against the decision on his extradition in presence of the applicant and his lawyer and upheld the challenged decision. On 7 August 2012 the applicant appealed against this decision.
On 14 August 2012 the Court of Appeal examined the applicant’s appeal against the decision on his extradition in the presence of the applicant’s lawyer, but not the applicant himself, and upheld the extradition decision.
On 15 August 2012 legal expert of the KHPG on behalf of the applicant filed a request for application of interim measure under Rule 39 of the Rules of Court and asked the Court to indicate to the Government of Ukraine to stop the extradition of the applicant.
On 17 August 2012 European Court of Human Rights decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Ukraine, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Russian Federation for duration of the proceedings before the Court.
On 23 August 2012 legal expert of the KHPG on behalf of the applicant filed a complaint on violation of Article 3, Article 5 §§ 1, 4 and 5, Article 6 § 1 and Article 13of the Convention.
The applicant first complains that his extradition to the Russian Federation will put him at imminent risk of torture and unfair trial in breach of Articles 3 and 6 § 1 of the Convention and will deny him a possibility to stand fair trial in Ukraine.
The applicant next complains under Article 3 of the Convention that the Ukrainian law-enforcement authorities subjected him to inhuman and degrading treatment during his arrest and tortured him in the course of investigative activities to obtain false self-incriminating statements.
The applicant complains as well that his detention starting from 11 July 2012 has been unlawful within the meaning of Article 5 § 1 of the Convention.
The applicant complains also under Article 5 § 4 of the Convention that regard being had to the failure of the authorities to regularize his detention with a view to his extradition after 11 July 2012, he had no effective opportunity to bring proceedings to have the lawfulness of his detention examined speedily.
He further complains under Article 5 § 5 of the Convention that applicable legislation do not entitle him to demand compensation for his unlawful detention pending extradition. Finally, the applicant complains under Article 13 of the Convention that he has no effective remedies for his complaints regarding extradition.
On 10 October 2012European Court of Human Rights has decided that the application should be given to the Government of Ukraine and invited the Government to submit their observations on admissibility and merits of the case.
On 26 February 2013 the Reply to the Government’s observations has been filed on behalf of applicant by the legal experts of the KHPG. The Court has not yet delivered a judgment in this case.
10. Case of Petrenko v. Ukraine
The applicant, Mr. Yevgeniy Vitaliyovych Petrenko, is a Ukrainian national who was born in 1988 and is currently serving his sentence in prison.
The facts of the case may be summarized as follows. On 28 February 2004 an adolescent was found dead in the garden areas of Cherkasy city. The corpse displayed stab wound to the neck and the chest.
According to the applicant he was arrested on 18 May 2004 and brought to the police station. There he was psychologically pressured and physically ill-treated with the purpose of extracting his confession to the murder.
At 6.20 p.m. on 19 March 2004 the investigator formally arrested the applicant on suspicion of having stolen a cell phone from an acquaintance.
At 6.40 p.m. on the same day the applicant was questioned as a witness in connection with the murder. The questioning was carried out without a lawyer. Before being questioned the applicant had been warned that refusing to give evidence and giving false evidence were criminal offences. At the same time he was informed that he had the right to refuse to give evidence regarding himself and his or her relatives.
At 11.30 p.m. on the same day the applicant confessed the incriminated murder.
On 20 March 2004 the applicant was questioned in the presence of lawyer. The applicant again admitted that he had committed the murdered.
At 6.20 p.m. on the same day the applicant was moved to the Temporary Detention Centre of Prydniprovskyy District Police Department of Cherkasy (“the ITT”).
On 21 March 2004 a forensic medical expert issued a report stating that the applicant suffered from no bodily injuries. The expert specified that the medical examination of the applicant was held in the Cherkasy Pre-Trial Detention Centre (“the SIZO”).
On 3 June 2004 a forensic medial expert issued a report stating that the applicant sustained no bodily injuries during the preliminary detention. It appears that in reaching that conclusion the expert relied on the report of 21 March 2004.
On 26 August 2005 the applicant was examined by a doctor who noted, inter alia, that the applicant suffered from fractures of three ribs.
On 29 August 2005 the Cherkasy Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) directed the applicant’s complaint concerning the violation of his rights during the investigation to the Court of Appeal.
On 7 November 2005 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a cell phone and convicted him to fourteen years’ imprisonment.
The applicant appealed against the judgment claiming that his confession was obtained by way of ill-treatment and in breach of his rights of defence.
On 8 November 2005, in reply to the applicant’s complaint of ill-treatment and violation of his procedural rights during the investigation, the Regional Prosecutor’s Office informed the applicant that those issues had been examined during the pre-trial investigation and the trial and had been rejected as unfounded.
By the letter of 21 November 2005 the governor of the ITT provided the applicant’s lawyer with a list of the procedural measures undertaken in respect of the applicant during his detention in the ITT between 20 and 26 March 2004. According to that list, on 21 March 2004 the applicant was not escorted from the ITT in any direction and he did not take part in any procedural measures on that day.
On 14 February 2006 the Regional Prosecutor’s Office ordered the Sosnivskyy District Prosecutor’s Office of Cherkasy (“the District Prosecutor’s Office”) to carry out pre-investigation enquiries in respect of the applicant’s allegations of ill-treatment.
On 5 March 2006 the District Prosecutor’s Office refused to open investigation in connection with the applicant’s allegations of ill-treatment. The applicant challenged that decision before the Prydniprovskyy District Court of Cherkasy (“the District Court”).
On 16 May 2006 the Supreme Court quashed the judgment of 7 November 2005 and remitted the case to the Court of Appeal for a fresh consideration. It noted that the case had not been properly considered by the Court of Appeal as regards the role of D. in the incident. It further ordered that the applicant’s allegations of violations of his rights had to be scrutinized carefully.
On 2 August 2006 the District Court quashed the District Prosecutor’s Office’s decision of 5 March 2006 and ordered further pre-investigation enquiries. It noted that the medical report of 21 March 2004 was not reliable since the other evidence suggested that the applicant had not been escorted to the SIZO for the medical examination on that day. Moreover, the prosecutor’s office did not properly examine whether the applicant really sustained rib fractures as documented by the report of 26 August 2005.
On 25 December 2006 the District Prosecutor’s Office refused to open an investigation in connection with the applicant’s allegations of ill-treatment. On 26 January 2006 the District Court quashed that decision as unfounded after finding that the contradictions identified by the court earlier, had not been removed.
On 28 February 2007 the District Prosecutor’s Office adopted another decision refusing to open an investigation in connection with the applicant’s allegations of ill-treatment. On 25 April 2007 the Regional Prosecutor’s Office quashed that decision and ordered further pre-investigation enquiries.
On 10 August 2007 the District Prosecutor’s Office again refused to open an investigation in connection with the applicant’s allegations of ill-treatment.
On 19 November 2007 the District Court quashed that decision as unfounded noting that the file contained serious contradictions which had not been removed. The District Prosecutor’s Office appealed against that decision to the Court of Appeal.
On 28 November 2007 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a cell phone and convicted him to fourteen years’ imprisonment. The court noted that while the applicant had not admitted his guilt during the trial, the evidence in the file was sufficient to establish that he had committed the crimes. The court referred to the applicant’s self-incriminating statements made at the pre-trial investigation and noted that they were consistent with the other evidence. The court further dismissed the applicant’s allegations of ill-treatment, noting that during the trial the police officers denied the alleged facts and the medical reports of 21 March and 3 June 2004 did not support those allegations.
The applicant appealed against the judgment claiming, inter alia, that his defence rights had not been respected at the initial stage of the investigation, that he had not been given access to a lawyer immediately after the arrest and that his self-incriminating statements had been obtained as a result of ill-treatment. The applicant also claimed that the court failed to question all the law-enforcement officers and other people, who had been dealing with the applicant’s case in various capacities (the former applicant’s lawyers and experts in particular), and therefore failed to disclose the facts of falsification of certain documents in the case file. On 18 December 2007 the Court of Appeal partly allowed the prosecutor’s appeal against the District Court’s decision of 19 November 2007. It noted that the applicant’s allegations of ill-treatment concerned the admissibility and veracity of evidence in his criminal case. Therefore those issues had to be examined by the Court of Appeal in the course of the applicant’s trial and not by way of separate proceedings. The court further found that the judgment adopted in the applicant’s criminal case addressed the relevant issues. Accordingly, the proceedings on this matter had to be terminated. The applicant appealed in cassation.
On 6 May 2008 the Supreme Court upheld the judgment of 28 November 2007 noting that the applicant’s guilt was well established by various pieces of evidence in the case file, including the applicant’s self-incriminating statements made during the pre-trial investigation. It dismissed the applicant’s allegations of ill-treatment and violations of his procedural rights as groundless.
On 10 June 2008 the Supreme Court upheld the Court of Appeal’s decision of 18 December 2007 noting that the relevant issues could not be examined in parallel with the on-going trial in the applicant’s criminal case.
On 3 November 2008 the applicant lodged his complaint before the European Court of Human Rights. In particular, he complained under Article 3 to the effect that following his arrest he was subjected to ill-treatment on the part of police officers with the purpose to extract his confession to the crime of murder and that his allegation of ill-treatment had not been properly investigated.
He also complained under Article 5 that his arrest and preliminary detention were unfair
In addition the applicant complained his trial was conducted in breach of Article 6 of the Convention. In particular, the domestic courts based their conclusions exclusively on falsified documents and confessions made by the applicant and his co-accused which were later retracted by them as given under duress. He also complained that his defence rights were not duly respected in the initial stages of the proceedings and that the courts had failed to properly examined witnesses on his behalf.
On 13 November 2012 the Court invited the Government to submit written observation on the admissibility and merits of the case.
On 22 May 2013 the Reply to the Government’s observations has been filed on behalf of applicant by the legal experts of the KHPG. The Court has not yet delivered a judgment regarding this case.
11. Case of Tikhonov v. Ukraine
The applicant, Mr. Igor Nikolayevich Tikhonov, is a Ukrainian national, who was born in 1979 and is currently serving his sentence in prison.
On 12 February 2006 a man was found killed in his house in the village of Pavlysh, Kirovohrad Region. A criminal investigation was opened.
On the same day the police arrested the applicant under Article 263 of the Administrative Offences Code for minor disorderly conduct which constituted an administrative offence laid down in Article 173 of that Code. Allegedly, during the next two days the police officers repeatedly questioned the applicant without allowing him to sleep, psychologically pressured him and applied physical violence against him with the purpose of extracting his confession to the murder.
On 14 February 2006 the applicant confessed to the crime. The confession was videotaped. He was then arrested as a suspect to the murder. The material concerning the administrative offence was not submitted to any authority for being considered on the merits.
On 15 February 2006 the applicant participated in the reconstruction of the crime where he showed how he committed the murder. During the above period the applicant was not given access to a lawyer.
On 24 February 2006 the applicant was provided with a legal aid lawyer. The applicant refused that lawyer and requested that another lawyer, hired by his relatives, be admitted to him. The request was refused and applicant was questioned without any lawyer on that day.
On 21 June 2007 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. The court based its findings on the material, oral, documentary and expert evidence. The court referred in particular to the applicant’s initial self-incriminating statements and noted that they were consistent with the other evidence available in the file. As to the applicant’s allegations of ill-treatment, the court questioned the law-enforcement officers and the witnesses participating in the reconstruction of the crime who denied the allegations. The court also reviewed the videotapes of the applicant’s self-incriminating statements and found no signs of ill-treatment.
On 15 January 2008 the Kirovohrad Region Court of Appeal upheld the judgment of 21 June 2007.
On 7 October 2008 the Supreme Court dismissed the applicant’s cassation appeal as unfounded and upheld the decisions of the lower courts.
On March 2009 the applicant lodged the application to the ECtHR. The applicant complained that during the first days of his detention he was subjected to psychological and physical ill-treatment prohibited by Article 3 of the Convention. He also complained under Article 5 of the Convention that his arrest and initial detention were unlawful. The applicant further complained under Article 6 § 1 of the Convention that the courts failed to properly examine the evidence in the file and to correctly apply the law and under Article 6 §§ 1 and 3 (c) of the Convention that he had no access to a lawyer at the initial stage of the proceedings.
On November 2012 the ECtHR decided to communicate the application to the Government of Ukraine. The SLC has provided legal aid for the applicant when prepared the reply on the Government’s Observations.
On 10 December 2013 the lawyer of the SLC prepared the reply on the Government’s Observations.
12. Case of Yarovenko v. Ukraine
The applicant, Mr. Yuriy Mikhaylovich Yarovenko, is the Ukrainian national who was born in 1975 is currently serving a life sentence in prison.
During the provision of the criminal proceeding against the applicant he was detained in several pre-trial detention facilities, in particular, in Simferopol ITT, Simferopol SIZO and Dnipropetrovsk SIZO. The conditions of detention in these establishments were degrading. Moreover, the applicant was not provided with necessary medical assistance concerning his tuberculosis disease.
The complaints to the national organs have not given proper results. Therefore in 2006 the applicant applied to the ECtHR. The applicant complained on the inadequate conditions of detention, lack of medical treatment and ill-treatment by the prison guard in violation of Article 3 of the Convention. Further he complained on the violation of Article 34 of the Convention in the form of refuse of state authorities to provide him with the copies of necessary documents for the ECtHR and refuse to send his letter to the ECtHR. The applicant also complained on the violation of Articles 5 and 6 of the Convention, however, the Court decided to reject this part of the application as inadmissible.
In September 2012 the ECtHR decided to communicate the application to the Government of Ukraine. The SLC has provided legal aid for the applicant when prepared the reply on the Government’s Observations.
On 30 April 2013 the lawyer of the SLC prepared the reply on the Government’s Observations.
3. In the next 22 cases lawyers of the SLC drew up and submitted applications to the Court.
1. Case of Antonov v. Ukraine
Sergiy Antonov (“the applicant”), Ukrainian national, was prosecuted for having committed a robbery of a cellular phone and was kept in Kiev SIZO. He suffered from numerous diseases: HIV infection of IV clinic stage, hepatitis C, extrapulmonary tuberculosis of peripheral lymph nodes, intestinal dysbiosis etc. The applicant was not provide with adequate medical treatment, moreover he was not provided with antiretroviral therapy at all. The SLC lawyer lodged to a court tried the case with a motion to change the preventive measure for the applicant from preliminary detention to less severe, eg., home arrest, but the court declined the motion. Having obtained the medical certificate that the defendant was in a state that could lead to his death, and that there are no conditions for his treatment in detention facilities the lawyer in June 2013 prepared and lodges to the ECtHR an application with the request to apply Rule 39 of Rules of the Court. The ECtHR had granted the interim measures and asked the Government to provide the applicant with adequate medical aid. In July 2013 the lawyer on behalf of the applicant lodged to the Court the completed application form.
Now the applicant is kept in a correctional institution in Zhitomir oblast and is provided with necessary medical treatment.
2. Case of Biryukov v. Ukraine
The applicant, Mr Sergei Dmitriievich Biryukov, is a Ukrainian national, who was born in 1965 and now he lives in Kharkov, Ukraine.
The applicant complained on the refusal of the state to recognize him as person affected by the Chernobyl nuclear power plant based on the analogy of the law, because there was no specific legislation governing the order of compensation to the persons affected by the impact of the Chernobyl accident consequences.
In 1989, the applicant was sent by the state as a doctor in the town of Mirny in the Briansk region where he lived from 03.08.1989 till 29.08.1990.
Since 1991, the condition of the applicant’s health has been gradually and progressively worsening in connection with the fact that he received overdose of radiation while working in the town of Mirny.
Since then, the applicant repeatedly appealed to the competent authorities requesting to grant him the status of a person who suffered from the Chernobyl disaster, but his appeals were denied by mistake.
The applicant consistently challenged the decision of the state courts of general and administrative jurisdiction, but in both cases his appeals were rejected on formal grounds.
The applicant claims that in his regard Article 6 § 1 of the Convention was violated, as the national courts considered his case in violation of the procedural rules, as well as in violation of his right to a fair trial within the meaning of Article 6 of the Convention, in particular without notifying the applicant’s representative prior to the hearing on the date and time of the hearing before the administrative court.
The applicant claims that there was also a violation of Article 8 of the Convention in his regard, as his right to private and family life was infringed and continues to be violated due to the damage caused to his health which is attributable to the state, and its formal rejection to recognize him as a person who suffered from the Chornobyl disaster.
On December 24, 2013 the lawyer of the SLC submitted the application to the ECtHR under Article 6 and Article 8 of the Convention on behalf of the applicant.
3. Case of Burlakov and others v. Ukraine
The applicants, Mr Burlakov Yevgeniy Aleksandrovich, Lysenko Iliya Vladimirovich, Saratovskiy Alexandr Ivanovich, Degtyarov Yevgeniy Alexandrovich, Darenskiy Artyem Vasilyevich are co-defendants in criminal case. They are under detention in the Kharkiv SIZO.
They are delivered together in Kominternovskiy District Court of Kharkiv to the court hearings in criminal case against them.
Periodically the applicants are delivered to the court with the persons, who suffer from tuberculosis. In some cases these TB patients were not given masks and were kept with the applicants in the same car.
In view of the mentioned fact the applicants underwent a risk to get sick for tuberculosis.
In this connection Mr Burlakov Yevgeniy and Mr Lysenko Iliya applied to the President of Ukraine, the prosecutor’s office of Kharkiv Region, the chief of the police department of Kharkiv Region, the Minister of Internal Affairs of Ukraine, the Ministry of Health of Ukraine.
Under the complaint of Mr Bulakov police department of Kharkiv Region conducted an enquiry and found out that on May,22, 2013 the applicants were transported to the court with Mr Karnaukh, who suffers from tuberculosis, in the same car, At that TB patient was not provided with a mask. The enquiry found out that this happened because of the data provided to the staff of escort unit lacked information about Mr Karnaukh’ disease.
The conclusion of the enquiry was sent to the prosecutor’s office of Kharkiv Region in order to carry out investigation.
However the applicants don’t know if any investigation was carried out by the prosecutor’s office.
On 22 November 2013 the legal expert of the KHPG on behalf of the applicants lodged complaint before the ECtHR.
The applicant stated that the conditions of their transportation to the court violate requirements of Article 3 of the Convention.
4. Case of Chenchevik v. Ukraine
In March 2010 V. Chenchevyk, Ukrainian national, was detained by police officers and brought to a district police station in Kharkiv. The same day he was cruelty beaten; due to of that he was transported to a civil hospital, underwent to a surgery and was in the hospital during 13 days. The complaint of his mother to a prosecutor’s office to the police abuse lain in the office without reviewing during four weeks. A lawyer lodged the suite on the prosecutor’s office inactivity to an administrative court, but the court refused the suite on the matter of wrong venue. Then the lawyer lodged the complaint to the common district court with the only request to the court to recognize this inactivity of the prosecutor’s office as unlawful. After two dismissal to grant the complaint and the following two appeals upon of the results of the second trial the district court passed the “Soloman” judgment – to satisfy it in a part, namely to direct the complaints to the regional prosecutor’s office. The appellate court and the cassation court hold the judgment of the trial court.
In January 2013 the lawyer prepared and lodged to the ECtHR on behalf of the mother of the victim of torture the complaint on a violation of Article 6 or the Convention on the matter of issuance by the national courts unreasoned decisions. In July 2013 the ECtHR refused the application.
5. Case of Dzuba v. Ukraine
In July 2011 Dmitriy Dzuba, Ukrainian national (“the applicant”), was arrested by police officers in Kiev and brought to a district police station. During one day the police was not filling in the arrest record, and interrogated the applicant in absence of a defence lawyer. Initially the court rejected the investigator’s motion to select a preliminary detention to the applicant, and prolonged the term of the arrest to 10 days, but later it granted the motion and the applicant was placed in Kiev SIZO. The applicant is charged with aggravated robbery so the prosecution several times prolong the investigation and accordingly applied to the court with a motion to prolong the terms of the applicant’s preliminary detention.
The last time a court of appeal denied the motion to prolong the applicant’s detention up to several months, and granted only 5 months of detention. After expiry of the court’s detention order in December 2011, the prosecution directed the case with an accusatory act to the court. Since issuance of the last detention order there have no been legal basis for the applicant’s detention. On this ground the applicant had applied to a trial court with the motion to release him from the detention, but the court did not examined the motion at all. Therefore the applicant is kept in custody without judicial order during about two years.
The SLC lawyer lodged several complaints on the matter of the applicant’s illegal detention to the court, but the court refused to examine them. As well the lawyer lodged a criminal complaint to a prosecutor’s office for the applicant’s illegal deprivation of liberty.
In August 2013 the lawyer drafted an application on the violation of Article 5 of the Convention and lodged it to the ECtHR on behalf of the applicant.
6. Goncharenko v. Ukraine
The applicant, Mr Dmytrii Aleksandrovich Goncharenko, is a Ukrainian national, who was born in 1985 and now he is detained in Kiev region, Ukraine.
The applicant was arrested in Odessa by the police officers who took him in their car. Later they were beating the applicant in the forest for several hours in different parts of his body, particularly in the groin, head, and trunk, and put a plastic bag on his head. During all this time the police was requiring the applicant to confess to committing premeditated murder.
On October 21, 2010 the applicant was taken to a police department in Kiev. At night the police officers continued to beat the applicant in its premises.
On October 22, 2010 the applicant being exhausted from the physical and psychological violence in the form of long-term torture and fearing for his life and the life of his sister, signed a protocol of acknowledgement of his guilt, in which he pleaded guilty to the criminal offense under Article 115 of the Criminal Code (hereinafter - CC) of Ukraine (premeditated murder).
On October 22, 2010 at 8 p.m. the applicant was taken to a temporary detention facility in Kiev. During the initial medical examination there were found bruises on the left pinna, nose, both eyes, and on the buttocks of the applicant, and this was reflected in the corresponding entry in the journal of primary inspection.
On November 18, 2010 in the interests of the Applicant his lawyer filed a complaint to the prosecutor’s office in Kiev on misconduct of the police officers who tortured him and forced him to write a confession.
Since then, the applicant and his lawyer maintained his complaint to the prosecutor’s office in Dniprovskyi District of Kiev City appealing the numerous deficiencies of the criminal case made by the higher court and prosecutors.
The applicant claims that he had been subjected to violence which in accordance with Article 3 of the Convention is considered as torture. The applicant believes that his forcible apprehension by the police which took place from October 20 to October 22, 2010 exceeded the "minimum level of severity" defined in accordance with the well-established practice of the Court. The applicant points out that the actions the police applied to him in the forest, as well as such repeated actions in the premises of the police department were of intentional nature and had a special purpose - to make him confess to a criminal offense.
Applicant believes that the investigation into his treatment by the police officers was not effective according to the following criteria:
1. The superficiality of the investigation. However, the applicant believes that the prosecutors didn’t make sufficient efforts to investigate his allegation of torture. The prosecutor’s office didn’t follow the investigative procedures to confirm the guilt of the police officers in beating of the Applicant (forensics, investigation of the criminal case, crime scene examination, examination of testimonies of the applicant’s apprehension).
2. The slowness of the investigation. The total period from the moment of the first application to the prosecutor’s office till the present is more than 2 years and 10 months. There isn’t any logical justification on the part of public authorities for such lengthy terms.
On October 8, 2013 the lawyer of the SLC sent the application to the ECtHR under Article 3 on behalf of the applicant.
7. Case of Jus v. Ukraine
In January 2013 Ukrainian national Oleg Jus (“the applicant”) was apprehended by criminal search police officers in Ivano-Frankivsk. The applicant was searched and two syringes with alleged drug liquid were seizure from him. The applicant was brought to a district police station where the records about his possession of illegal substances was drew up. Then the applicant was subjected to medical examination on the state of drug intoxication, and was returned to the station. After the applicant’s refusal to testify about the case, he was released by own recognizance. In violation of a provision of the Code of Criminal Procedure, no records about his arrest has been filled in. The next day an investigator of the police station filed the case in the official criminal registry.
Five days ago the applicant lodged the complaint to a district prosecutor’s office on the illegal actions of the police, and the complaint was filed in the official criminal registry. In March 2013 the criminal proceedings against the police officers were terminated, The applicant appealed this prosecutor’s decision to a district court, and the court rejected the complaint. The applicant complained the court decision to a court of appeal, but the court adopted the decision of the district court.
In JULY 2013 the SLC lawyer drafted the application to the ECtHR and lodged it there on behalf of the applicant on the matter of violation of Article 5 of the Convention.
8. Case of Lunev v. Ukraine
On 20 January 2012 the applicant, Mr Andrey Vladimirovich Lunev, was arrested upon suspicion of drug trafficking.
On 30 January 2012 the applicant was placed to the SIZO. Upon arrival he was diagnosed with toxic encephalopathy and neuropathy caused by a prolonged use of drugs. On 22 February 2012, following its inquiry, the SIZO administration was informed by a hospital (name unreadable) that the applicant had been diagnosed with the HIV (III stage).
On 9 January 2013 the applicant was found unconscious in his cell. On the same day the Head of the SIZO requested the Bryankivskyy Local Court to accelerate the proceedings in the applicant’s case or to release him on the undertaking not to abscond since the applicant needed urgent medical treatment in a specialised hospital.
On 10 January 2013 the above court decided that the applicant should remain in pre-trial detention but should be placed to a specialised prison hospital or civil hospital.
Between 9 and 11 January 2013 the applicant stayed in a hospital. He was diagnosed with an acute serose meningoencephalitis. It was noted that the applicant was in soporose state.
On 11 January 2013 the applicant was placed back to the SIZO where he stayed in a medical unit until 15 February 2013.
In January 2013 the legal expert of the KHPG and the applicant’s lawyer drafted the request to the ECtHR for application of interim measure under Rule 39 of the Rules of Court.
On 17 January 2013 Ms Olga Tkach, applicant’s counsel, filed the request to the ECtHR for application of interim measure under Rule 39 of the Rules of Court and indicate to the Government of Ukraine to provide the applicant with the adequate medical treatment in the appropriate medical facility.
On 8 February 2013 the Bryankivsk Medical Unit informed the SIZO that the applicant had been diagnosed with HIV in October 2010. On 27 October 2010 his CD4+ T cell count was 374. At that time the applicant refused treatment. On 11 February 2013 the applicant’s CD4+ T cell count was 119.
On 19 February 2013 the Bryankivskyy Local Court sentenced the applicant to six and a half years’ imprisonment for drug trafficking.
On 14 March 2013 the Lugansk Regional Penitentiary Department allowed the applicant’s placement to the Lugansk Temporary Detention Centre No. 17 Prison Hospital.
On 22 March 2013 the ECtHR rejected the applicant’s request under Rule 39 of the Rules of Court.
On 30 January 2013 in Alchevsk Temporary Detention Facility (“ITT”) the applicant was beaten by the police officers for lodging his request to the ECtHR for application of interim measure under Rule 39 of the Rules of Court. On the next day the applicant’s lawyer complained about this matter to the court. The applicant was called an ambulance and diagnosed with a “possible blunt abdominal trauma”. He was brought to a hospital and examined by a surgeon. The latter concluded that the applicant could be detained.
The applicant complained about the beatings to a prosecutor.
On 25 February 2013 the Alchevsk Prosecutor terminated the proceedings for absence of crime. Police officers and other persons present in the ITT on 30 January 2013 gave a detailed description of what had happened in the ITT on that day and stated that nobody had beaten the applicant. The video surveillance system of the ITT was, however, broken between 26 January and 2 February 2013. The surgeon, who examined the applicant on 31 January 2013, testified that the applicant had had no injuries. The prosecutor also referred to the conclusion of an undated forensic medical examination that the applicant had no injuries.
The applicant appealed against this decision to a court.
On 1 February 2013 the legal expert of the KHPG on behalf of the applicant lodged complaint before the Court. The applicant stated that his rights provided by Article 3 of the Convention were violated due to lack of adequate medical treatment in the detention facility.
On 19 March 2013 the legal expert of the KHPG on behalf of the applicant lodged complaint before the Court. This time the applicant complained that he was subjected to ill-treatment by police in detention facility and ineffective investigation of his complaint in this regard (Article 3 of the Convention) and preventing him from exercising his right for individual complaint to the ECtHR (Article 34 of the Convention).
On 10 September 2013 the Government presented their observations on the admissibility and merits of the case.
On 5 November 2013 the Reply to the Government’s observations has been filed on behalf of applicant by the legal experts of the KHPG. The Court has not yet delivered a judgment in this case.
9. Case of Lutaienko v. Ukraine
The applicant, Mr. Yurii Oleksiiovych Lutaienko, is a Ukrainian national, who was born in 1977 and currently he serves his sentence in Slovyanoserbska Penal Colony No. 60 in Luhanska Oblast.
On November 30, 2008 together with another citizen the applicant was apprehended by the police officers on suspicion of illegal handling of weapons.
On January 5, 2009 the applicant was questioned in the premises of the temporary detention facility (ITT) of the Poltavskyi City Police Department. Herewith, the law enforcement officers subjected him to the torture with the use of electric current to make him confess in committing a murder of a person. The applicant was placed on the floor with his face down and his hands handcuffed behind his back. After that the aforementioned law enforcement officers put the clamps of the wire of a device such as a field phone on his ears and allowed electric current to flow in the wire. Due to this severe ill-treatment the applicant couldn’t breathe and beat his head against the floor in convulsions. One of the mentioned law enforcement officer was standing on his back and legs when this torture was being conducted. The situation was aggravated by the fact that the applicant had a number of chronic diseases. Because of this behaviour a serious ocular myopathy of the applicant has evolved and currently he has to wear the glasses with the lenses with minus 8 diopter.
Following these events, the applicant persistently appealed to the prosecution authorities with the claim to initiate criminal proceedings and appealed against the subsequent refusals from the prosecutor’s office to the court. Convinced by the fact that during this long period there was no progress in this case and the proper prosecution investigations weren’t conducted the applicant decided to apply to the ECHR.
In December 2013 a lawyer of the KhPG submitted a relevant application to the ECHR on behalf of the applicant. The complaints related to the violation of the material and procedural aspects of Article 3 of the Convention.
10. Case of Neveselyy and Neveselaya v. Ukraine
In November 2004 Mr. Volodymyr Neveselyy (hereinafter – Applicant 1) donated blood for his wife in the Krivoy Rog blood transfusion station. After the pre-testing of blood in December 2004 in The AIDS Centre, the applicant was found to be HIV-infected. The Applicant 1 was not informed about results of the testing. Respectively, the Applicant 1 did not receive medical treatment of HIV-infection.
In May 2006 when he applied to the local hospital of the city of Krivyy Rig the Applicant 1 accidentally found out about his HIV-status.
Mrs Ludmila Neveselaya (hereinafter 0 the Applicant 2) is the wife of the Applicant 1 and she also was not informed about his HIV-status for 1.5 year after testing.
The Applicant 1 ant the Applicant 2 lodged the suits to the national courts in which them asked to recognize unlawful actions of the Krivoy Rog blood transfusion station, the AIDS Centre, the local hospital of the city of Krivyy Rig pursue to non-informing in time of the Applicant 1 about his HIV-status and award compensation of the non-pecuniary damage to the both of applicants.
National court recognized unlawful actions of the AIDS Centre but refused to award the applicants non-pecuniary damage.
At present the lawyer of the Kharkov Human Rights Protection Group prepared the application to the European Court of Human Rights about violation of Articles 3 and 8 in respect of the Applicant 1 and violation of Article 8 in respect of the Applicant 2.
11. Case of Myroshnychenko v. Ukraine
The applicant is a Ukrainian national. In September 2009 he was detained on suspicion of committing a crime and a criminal case was initiated against him. The preventive measure in the form of detention was applied to him and he was kept in Kyivskyi SIZO.
In July 2011 Pecherskyi District Court of Kyiv City sentenced the applicant to 9 years of imprisonment.
In June 2012 the Kyiv City Court of Appeal cancelled this sentence and the case was referred for additional investigation. After that the applicant continued to be kept in SIZO without the court extension of the term of his detention during the investigation.
Starting from August 2012 the applicant and his lawyer filed complaints to the district court against the actions of the investigator and head of the SIZO, as well as numerous applications on release of the applicant from custody. The court forwarded the complaint to Pecherskyi District Court of Kyiv City where the criminal case of the applicant was considered and which also referred the complaint for consideration by the composition of court which considered the case on the merits.
On September 18, 2012 Pecherskyi District Court during the preliminary consideration of the case delivered a ruling on its referral for additional investigation and leaving for him a preventive measure in the form of detention. The lawyer submitted an appeal against this court’s ruling in the part of leaving the preventive measure unchanged. However, the Kyiv City Court of Appeal upheld the ruling of Pecherskyi Court.
During his detention in SIZO the applicant became ill with tuberculosis of the lungs, and the doctors found the applicant became ill with hypertension illness of II stage. He also suffered from chronic pyelonephritis. Because of the absence of adequate treatment the state of the applicant’s health had sharply deteriorated.
Currently, the criminal case against the applicant is pending trial in the court of first instance.
In December 2012 the lawyer of the SLC on behalf of the applicant filed an application to the European Court of Human Rights as regards violations of Articles 3, 5 and 13 of the Convention, and in May 2013 – the filled form of the application in full.
12. Case of Onufrak v. Ukraine
The first applicant, Mr. Dmitriy Onufrak, is a Ukrainian national has a permanent address in Makeyevka, Donetsk region. The second applicant, Ms. Irina Onufrak, is mother of the first applicant.
In the night from 19 to20 January 2011explosions occurred in Makeevka. The Prosecutor’s Office instituted criminal proceedings under Article 258§ 2 of the Criminal Code of Ukraine (terrorist acts).
On 11 February 2011 the first applicant was arrested on suspicion of robbery of a taxi driver.
During interrogation the first applicant was subjected to ill-treatment in order to force him to give confessions in terrorist acts, which occurred in the night from 19 to20 January 2011. Under torture the first applicant gave confessions in the above crime.
However, in court he refused from his confession and stated that he has gave his confessions under duress. The court ordered to carry out the investigation under this complaint. The investigation was conducted by the military prosecutor’s office. The decision on refusal to institute criminal proceedings has been held in this case.
On 5 September 2011 the first applicant was sentenced by the Central District Court of Makeevka to imprisonment for a term of15 years with confiscation of all property.
On 19 September 2011the first applicant appealed against this decision to the Court of Appeal.
By the decision of the Court of Appeal of Donetsk region of3 0 December 2011the qualifications of the applicant’s action under Article 115 § 2, Article 115 § 2(6)the Criminal Code removed from the sentence.
The first applicant appealed against this decision to the Court of Cassation.
On 27 September 2012the Supreme Specialized Court of Ukraine upheld the decision of the Court of Appeal.
House of the second applicant was confiscated in accordance with the sentence of the Central District Court of Makeevka.
The legal expert of the KHPG prepared the complaint to the European Court of Human Rights on behalf of the applicants.
The complaint contains the following issues:
- the first applicant considers that he was subjected to torture by police and no effective investigation of his complaint on torture was conducted contrary to Article 3 of the Convention;
- the first applicant considers that his right to fair trial was violated since his sentence is based on his confession given under duress (Article 6 of the Convention);
- the second applicant considers that his right provided for by Article 1 of Protocol No. 1 was violated since her house was confiscated according to the sentence in respect of the first applicant.
13. Case of Podryadchikov v. Ukraine
The applicant, Mr. Valentin Fedorovich Podryadchikov, is a participant of the cleaning up operation after the nuclear accident at the Chernobyl nuclear plant. He also has a disability connected with the diseases caused by the consequences of its participation in the elimination of the accident at the Chernobyl nuclear plant.
In October 2010 the applicant lodged an administrative suit to the Ordjokinodze district court of Kharkiv (hereinafter- the district court) in which he asked the court to order the Office of Labor and Social Protection of Population to pay the applicant, and to recalculate the amount of any losses of annual aid on recovery for the loss of health from nuclear damage.
The district court refused to open proceeding under the applicant’s suit referring to the fact that the applicant had not complied with the six-month period of stature of limitation.
The applicant appealed against decision of the district court to the Kharkiv District Administrative Court of Appeal (hereinafter – the Court of Appeal).
On 1 March 2011 the Court of Appeal issued a ruling in which partially upheld the appeal of the applicant, quashed the decision of the district court of 16 December 2010. However, the Court of Appeal decided to the administrative claim of the applicant without consideration on the basis of the non-compliance with the six-month period of stature of limitation.
The applicant appealed against the above decision of the Court of Appeal to the Supreme Administrative Court of Ukraine.
On 20 February 2013 the Supreme Administrative Court of Ukraine issued a ruling in which it quashed the decisions of the lower courts and sent the case back for a new consideration in the Court of Appeal.
On 14 May 2013 after new consideration of the applicant’s administrative suit the Court of Appeal issued a ruling that overturned the ruling of the district court of 16 December 2010 and issued a new decision about leaving administrative claims without consideration on the basis of the non-compliance with the six-month period of stature of limitation.
The applicant asserts that he complied with the six-month period of stature of limitation as he had lodged his administrative suit after obtaining an answer from the Office of Labor and Social Protection of Population of 14 June 2010.
In December 2013 a lawyer of the Strategic Litigation Centre prepared an application to the European Court of Human Rights on violation of Article 6 § 1 of the Convention regarding the applicant’s absence of the access to trial.
14. Case of Samoylova v. Ukraine
The applicant, Ms. Svetlana Vladimirovna Samoylova, is a Ukrainian national who was born on 1940 and is currently living in Kharkiv.
6 August 2004 the Applicant was conducted histological examination of tissue taken of the stomach, the results of which the Applicant was revealed poorly differentiated adenocarcinoma of the stomach tissue , that is, cancer of the stomach.
On 18 August, 2004 the Applicant underwent surgery - subtotal gastrostomy. In fact the applicant was removed four fifths of the stomach on suspicion of the presence of cancers of the stomach. After this operation the applicant was 7 days in intensive care, her condition was extremely grave.
On August 27, 2004 it was conducted post-operative histological examination of the extracted tissue of the stomach, which data indicate the absence of the Applicant gastric adenocarcinoma tissues and found the phenomenon gastritis.
On September 10, 2004 secondary inspection for the purpose of cross-checking was made and verification of the diagnosis recovered after surgery stomach tissue, which also failed to identify the Applicant stomach cancer. When considering the applicant’s complaint before the domestic courts found that the State Hospital number 2 had at the time of the operation license to the applicant needed medical activity in " oncology ", but this was not taken into account by the courts.
On 26 October 2005 the applicant was recognized as permanently disabled. The Applicant fell into a deep depression, she developed suicidal thoughts , which she periodically had while recovering from surgery because of severe pain.
On 16 November 2010 the applicant filed a lawsuit in the District Court against the Comintern Hospitals number 2 for non-pecuniary damage arising as a result of injury as a result of the carried out gastrectomy.
On 19 June 2012 Kominternovskiy District Court of Kharkiv made a decision to dismiss the claim of the Applicant in full.
On 9 August 2012 the Court of Appeals of Kharkiv region upheld Kominternovsky District Court of Kharkiv and dismissed the appeal, and in recognition of the illegal act of providing hospital medical services.
On 5 November 2012 a panel of judges of the Chamber of Criminal Cases of the High Specialized Court of Ukraine for Civil and Criminal Affairs issued a ruling rejecting the applicant’s appeal.
On August 2013 the complaint before the European Court of Human Rights was filed on behalf of the applicant by the legal experts of the SLC. The applicant considered that the mistreatment of her hospital’s medical staff number 2, which led to irreversible changes in its state of health and the loss of 4/5 parts of a vital organ, can be seen as a violation of Article 2 of the Convention by the State. The Applicant requested to declare a violation of article 3 of the Convention, the lack of adequate medical care by the medical staff of the hospital number 2 and conducting operations with the most dangerous consequences for the health of the Applicant despite the existing more sparing treatments and surgery. The Applicant requested the Court to declare that the interference with the bodily integrity of the applicant by his internal organ resection was a violation of Article 8 of the Convention. The Applicant asked to recognize the intrusion into her private and family life by the disclosure of the diagnosis of the Applicant in the prosecution, and the court separate aspect of the violation of her right to privacy and the privacy.
15. Case of Savinov v. Ukraine
Eduard Savinov serving a sentence in a penal colony suffered from numerous diseases (see. Savinov case in par.2.4 below).
The SLC lawyer on the basis of telephone communication with Savinov and medical documentation from the NGO “Soniachne Kolo” has prepared and submitted to the ECtHR a request for application of Rule 30 of Rules of the Court.
On March 2013 the ECtHR has indicated to the Government to apply the interim measures, namely to provide Savinov. with the adequate medical treatment immediately.
On March 19, 2013 pursuant to the request the Government sent a letter to the State Penitentiary Service of Ukraine where the requirement of the ECtHR was stated, as well as the necessity to undertake necessary measures in this regard.
After application of Rule 39 of Rules of the Court the SLC lawyer drafted and lodged to the ECtHR completed application form.
In autumn 2013 Savinov case has been passed to the ECtHR for communication, and the SLC lawyer filed to the Court her reply for the Government’s observations. Now a judgment of the Court is expected.
16. Case of Sokil v. Ukraine
The applicant, Mr Maksim Viktorovich Sokil, is a Ukrainian national, who was born in 1981 and is currently detained in Kiev, Ukraine.
On February 2012 the applicant was arrested in Kyiv as suspected of committing the series of crimes.
The applicant had previously been convicted in 2010 to 5 years in prison, but he was released on 07.07.2011 by a court from serving because of health conditions
From 2011 the applicant currently is followed up by the Kyev City AIDS Center with a diagnosis of HIV infection IV Cl. Art., oropharyngeal candidiasis. Chronic hepatitis is of mixed origin (toxic + HCV), residual myocardial pulmonary tuberculosis (2008).
03.09.2012 the applicant found guilty of committing a series of crimes by court.
Preventive measure for the applicant prior to the entry into force of the sentence was left the same - the detention of the Kiev’s pre-trial detention centre (SIZO).
28.01. 2013 Court of Appeal left the sentence unchanged. At the moment, the verdict has not entered into force.
During his detention the applicant has repeatedly complained about the high cost to the health.
From 20.03.2012 till 13.08.2012 the applicant was in the medical unit of the Kiev’s SIZO, from which he was discharged, despite the fact that according to the discharge summary continued to be ill.
The recommendations given in this statement, it was pointed out that the applicant needs to continue treatment, and recommended treatment in a specialized institution of the Ministry of Health.
According to the results of immunological analysis (23.01.2013), applicant’s health deteriorated. The applicant claims that this trend indicates a worsening state of health and the dynamics of acute inflammation. The applicant claims that the reason for this is the lack of medical treatment in the medical unit of the detention facility, which is part of non-compliance with the medical protocols.
The applicant drew the Court’s attention to the fact that if the dynamics of falling white blood cell count of the Applicant will remain the same due to lack of adequate diagnosis and treatment in prison, the state of health of the applicant will inevitably deteriorate and this can lead to death or other serious consequences.
On 5 February 2013 the legal expert of the KHPG on behalf of the applicant filed a request for application of interim measure under Rule 39 of the Rules of Court and asked the Court to indicate to the Government of Ukraine to pointed to the need for immediate support to the applicant the necessary tests and treatment in a specialized medical institution of the Ministry of Health, which can not be provided in a Kiev’s SIZO.
The SLC lawyer filed a request about providing of medical records of the Applicant with the administration of the colony.
On 3 April 2013 legal expert of the SLC filed a complaint with the Court about violation Article 3 of Convention of the Applicant in relation to the conditions of his detention and failure to appropriate medical care.
17. Case of Tokarev v. Ukraine
In July 2011 acting as a criminal defence counsel, a lawyer Gennadiy Tokarev (“the applicant”), Ukrainian national, applied to the regional Ministry of Interior Affairs expert institution with a request to be familiarized with some public information necessary for criminal defence. The expert institution refused to give the information. The applicant lodged a suit to the refusal to a district administrative court. The court rejected the suit, and the applicant had appealed the judgment to an appellate court and then to the High Administrative Court, but in vain.
In September 2013 the applicant lodges a complaint on violation of Article of the Convention. Specifically the applicant stated that the first instance court had not considered and accordingly had not disposed the case on the merits with arguing of the judgment with absence of a violation of the right which is to be protected in court. Both higher courts did not pay attention to arguments of the applicant, moreover the cassation court has rejected case file having considered absence of grounds to review the case on the merits. Lack of examination of the case on the merits by all instances of administrative courts the applicant considered as a violation of access to court.
Also the applicant stated about violation of Article 10 of the Convention on the matter of access to information, with argumentation that there had been no grounds for limitation of the applicant’s right for access to information, foreseen by §2 of Article 10.
18. Case of Ushakov
In June 2008 the applicant Sergiy Ushakov was arrested on suspicion in having committed a murder. He was tortured in the district police station and forced to confession in having committed of premeditated murder. At once the applicant complained on the police abuse, and the district prosecutor’s office instantiate criminal proceedings on the matter. Later the case was passed for the investigation to the regional prosecutor’s office. Since that time the investigation three times was terminated, but having been complained by the KHPG lawyer it was renewed.
In January 2012 the application on violations of Article 3 of the Convention has been submitted to the ECtHR. At the same time the lawyer have continued to participate in national proceedings: complaining to the investigator’s decision to terminate the criminal case and represent the applicant in these proceedings before the district court and in the appellate court. The investigation after renewal is continued.
In July 2012 the court of appeal again held the conviction of the applicant. In January 2013 the High Specialized Court on Civil and Criminal Cases adopted the conviction.
In July 2013 a lawyer of the KHPG prepared and lodged the second complaint to the ECtHR, this time on the matter of violation of Article 6 of the Convention during criminal proceedings in the applicant’s criminal case of the murder. The case has the following disposal. In May 2009 the court of appeal sitting as a first instance court decided to return the case for additional investigation. The court has found numerous violations of the procedural law, imperfection of the pre-trial investigation, discrepancies of evidence etc. In January 2011 the court of appeal found the applicant guilty in an aggravated murder. In September 2011 the High Specialized Court on Civil and Criminal Cases revoke the conviction and send the case back to the first instance court for new trial. One of the grounds for quashing the sentence was non-compliance of investigative authorities with provision of the European Convention and the ECtHR case-law concerning of their obligation to carry out an effective investigation of the applicant’s complaint to the police torture.
The applicant’s complaint on violation of fair trial is joined with the original complaint on violation of Article 3 of the Convention.
19. Case of Vovk v. Ukraine
The applicant, Mr. Andrei Yuryevich Vovk, is a Ukrainian national who was born on 8 July 1992 and is currently serving a prison sentence in the Sokyriany penitentiary establishment № 67.
The facts of the case may be summarized as follows. On 29 August 2009 a dead body of a young woman with stub wounds was found in a concession stand in the village of Morskoy.
At 13:00-14:00 on 30 August 2009 the applicant was invited by the police for an interview to the premises of the local country council. After the interview the applicant was asked to undergone a procedure on a lie detector. After the procedure the applicant was apprehended by the police. He was transferred to another room and physical pressure was applied against him with the view to force him to confess the crime. After he refused any involvement in the crime he was transferred to the premises of the town of Sudak police office where he continued to be physically and psychologically ill-treated without access to a lawyer.
At 22:15-22:20 on the same day the applicant was officially detained by the police on suspicion of having committed the murder. On the same day the applicant confessed killing the young woman in the concession stand. His confession with a present of an appointed lawyer was filmed.
On 1 September 2009 the applicant was examiner by a doctor who found bruises and lesions on the applicant’s knees and wrists.
On 4 September 2009 the lawyer of the applicant’s choice was for the first time admitted to him. On the same, after meeting with the applicant’s lawyer, the applicant’s father complained about applying to his son unlawful methods of interrogation to the Sudak Prosecutor’s Office.
On 18 September 2009 the deputy prosecutor of the town of Sudak refused to initiate criminal proceedings on the basis of the claim of the applicant’s father.
On 30 October 2009 the measure of restrained was chosen with regard to the applicant in the form of imprisonment.
On 29 March 2010 the Appeal Court of the Autonomous Republic of Crimea found the applicant guilty as charged and sentenced him to fourteen-year imprisonment with the confiscation of all possession belonging to the applicant. The video tape with the applicant’s confession of 30 August 2009 was used in the court as a primary evidence of his guilt. The applicant appealed against this decision.
On 22 July 2010 the Supreme Court of Ukraine partially allowed the applicant’s appeal and remitted the case to addition investigation.
On 30 June 2011 the Sudak Town Court upheld the judgment of 29 March 2010. The applicant appealed against this decision on the points of fact.
On 26 January 2012 the Appeal Court of the Autonomous Republic of Crimea upheld the judgment of 30 June 2011. This ruling was also appealed by the applicant.
On 8 November 2012 the High Specialized Court of Ukraine on Civil and Criminal cases ruled to uphold the judgments of 30 June 2011 and 26 January 2012.
On 16 May 2013 the complaint before the European Court of Human Rights was filed on behalf of the applicant by the legal experts of the KHPG. In particular, the applicant complained under Article 3 of the Convention that he had been subjected to physical and psychological ill-treatment while in hands of police officers and that his allegations about that treatment had been left without appropriate consideration by the investigative authorities. In addition, the applicant complained that his confession obtained through torture had been used in the local courts against him and, thus, his right under Article 6 of the Convention was violated. The Court has not yet delivered a judgment regarding this case.
20. Case of Yarmola v. Ukraine
On November 6, 2010 the applicant was hospitalized to the Kharkiv Regional Clinical Psychiatric Hospital No. 3 diagnosed with acute polymorphic disorder. According to the documentation of the medical establishment the applicant was taken to the hospital due to deterioration of his health during the previous two days, inadequate behaviour and a suicide attempt.
Herewith, before the applicant signed the consent to hospitalization a health care worker administered to him the sedatives chlorpromazine and haloperidol without proper registration in the medical records, so that the consciousness of the applicant was significantly suppressed.
Under the influence of medication and coercion from outside medical staff applicant written consent to hospitalization, although not aware of this.
After the hospitalization the applicant requested his release. However, the medical staff continued to keep him in the psychiatric establishment, and in more than10 days in violation of the legislatively established term a local court ordered the compulsory hospitalization.
The complaints to the national organs have not given proper results. In September 2013 on behalf of the applicant the lawyers of the KhPG prepared the application to the ECHR. The complaints highlighted in it referred to the degrading treatment the applicant was subjected to when he was forcibly taken to the psychiatric hospital having no possibility to appeal this measure before it was applied in violation of Article 3 of the Convention. Also, in violation of legislated procedures he introduced sedative medications under which medical professionals effort him to write consent to admission to a psychiatric institution. As well, the applicant complained that his right to liberty was infringed since the court violated the deadline for consideration of the application of a medical institution for compulsory hospitalization. Thus, the applicant was forcibly detained in the psychiatric hospital without legal grounds in violation of Article 5 of the Convention. In addition, the applicant complained on violation of Articles 6 and 8 of the Convention. In particular, he was unjustified and unwarranted negative impact on their mental health.
However, in September 2013 the SLC lawyers found out that the applicant submitted his application to the ECHR on his own in August 2013. And further, he refused from the services of the KhPG lawyers when the relevant application had been already drafted.
21. Yarovenko v. Ukraine (Rule 31 of the Rules of Court)
In 2006 the applicant Mr. Yuriy Yarovenko lodged an appeal to the European Court of Human Rights. Among other complaints the applicant complained on violation of Article 6 § 1, § 3 (c) and (d) of the Convention.
In September 2012 the European Court of Human Rights informed the Government of Ukraine about the application. The questions to the parties concerned violations of Article 3 and Article 34 of the Convention. The European Court of Human Rights declared inadmissible the applicant’s complains under Article 5 and Article 6 of the Convention.
The applicant was confident that the Court rejected his complaints under Article 6 due to the fact that the applicant did not provide the Court with proving documents.
In April 2013 the applicant’s lawyers received the copies of the protocols of the court’s hearing which contained information which proved violation of Article 6 § 1, § 3 (c) and (d) of the Convention.
According to above the applicant decided to apply to the Court with the application about the revision of the Court’s decision about admissibility of the applicant’s complaints under Article 6 of Convention with applying of Rule 31 of the Rules of Court which provides possibility of particular derogations form the provisions of the Rules.
On 5 October 2013 the lawyer of the Kharkov Human Rights Protection Group prepared such application and sent in to the Court.
22. Zavadskiy v. Ukraine
The applicant is a famous Ukrainian musician, residing of Kiev. On 23 March 2012 the criminal case against the applicant was instituted under Article 156 §§ 1 and 2 ("child sexual abuse”) of the Criminal Code of Ukraine. On the same day the applicant was arrested. In the district police station the applicant was subjected to the torture with the purpose to take applicant’s confession in crime.
On 26 March 2012 the applicant was detained according to the court’s decision, notwithstanding of his positive reputation and fast progressing myopia with danger of his full blindness. The case-file materials, grounding the applicant’s arrest and selection of pre-trial detention, were not given for familiarization to the applicant’s lawyer, notwithstanding of the provision of law. The appeal court upheld the decision of the first instance court. After that domestic courts delivered number of the decisions to prolong the term of the applicant’s preliminary detention.
On 8 May 2013 the complaint before the European Court of Human Rights (ECtHR) has been filed on behalf of the applicant by the legal expert of the KHPG.
The complaint contains the following issues:
- the applicant considers that in his case there was no "reasonable suspicion" that he committed a crime within the meaning of Article 5 § 1 (c) of the Convention;
- the applicant considers that the decision of the national court on detention of the applicant is unreasonable contrary to Article 5 § 1 (c) of the Convention;
- the applicant considers that he is unreasonably detained since 23 March 2012 contrary to Article 5 § 3 of the Convention;
- the applicant complains about the lack of periodical review of his detention at the stage of pre-trial investigation contrary Article5 §4 of the Convention;
- taking into account the lack of procedures for compensation claims for deprivation of liberty if the Court decides that applicant’s detention is unlawful, the applicant considers that his rights under Article 5 § 5 of the Convention has been violated.
The procedure before the ECtHR is pending.
4. In the following 40 cases SLC lawyers represent interests of victims of human rights violations in the national court proceedings.
1. Aleksandrov v.Ukraine
The applicant, Mr Igor Alexandrov, is a Ukrainian national who has a permanent address in Kharkov.
The applicant is remain under care of neurologist at the Kharkiv City Polyclinic № 11 since April 2006, as he was having intense pain in the lumbar spine.
The applicant twice underwent surgery of herniated disc LV-SI at the Institute of Spine and Joint Pathology named after prof. M.I. Sitenko (hereinafter – Sitenko Institute) (May 16, 2006 and May 23, 2007).
About 6 months after the second surgery the applicant felt satisfactory. Then, his state has been slowly deteriorating.
On 28 October 2011 the applicant complained to the specialists of Sitenko Institute about severe pain in the lumbar spine. They gave advisory opinion N 71160, according to which "it is recommended to consider the possibility of using narcotic analgesics."
Despite applicant’s constant complaints on pain and notification that non-narcotic analgesics does not help to relieve the pain, the doctor of the Kharkiv City Polyclinic № 11 did not prescribe narcotic analgesics to him.
On 24 May 2012 specialists of Sitenko Institute recommended again "to consider the possibility of using narcotic analgesics."
On 30 May 2013 a commission was established upon the petition of the applicant. Commission examined medical records and the applicant. According to the conclusion of the commission the applicant suffers from pain which is not cropped by non-narcotic analgesics.
However, opioid analgesics, which are able to stop the pain, were not prescribed to him.
Thus, adequate pain relief was not provided to the applicant. He is still suffering from pain. This situation is causing him physical and mental suffering.
In June 2013 the lawyer of the KHPG lodged a suit against Kharkiv City Polyclinic № 11 in favour of the applicant.
In the mentioned suit the plaintiff asks the court to order the defendant to provide the plaintiff with adequate pain medication and to reimburse the costs for the purchase of medicines as well as non-pecuniary damage.
On 5 December 2013 the District Court of Kharkiv rejected applicant’s claim. He appealed against the decision to the Court of Appeal.
2. Berdnik case
The applicant, Mr. Vitaliy Vladimirovich Berdnik, is a Ukrainian national, who was born in 1972 and is detained in the Dnipropetrovs’k region, Ukraine.
20 July 2007 the applicant was arrested by police as a person suspected of a crime. From 30 July 2007 to 6 February 2009 applicant is located in the Kharkiv pre-trial detention centre (hereinafter – the SIZO), which was placed on the basis of the judgment.
In the period from February 2009 to April 2012 the Applicant was in the Ukrainian psychiatric hospital with a strict supervision of the Ministry of Health of Ukraine, due to the fact that he was mentally ill.
19 April 2012 the Court issued an order, and left as a precautionary measure the applicant’s detention with a stay in SIZO. In May 2012 the applicant was transferred to a detention centre, where he was detained to 5 August, 2013.
14 November 2012 the Applicant was sentenced to the application of compulsory measures of medical character by the judgment of Valky’s district court.
17 January 2013 the Court of Appeal of the Kharkiv region cancelled this decision and sent the case back for a new trial.
10 July 2013 Kolomak’s district court changed measure of restraint for Applicant. The court has appointed a measure of restraint in the form of detention to the psychiatric institution under conditions that preclude the applicant’s dangerous behaviour.
25 July 2013 the SIZO sent a letter to the court about the need to clarify the date of the direction of the Applicant to a psychiatric institution.
05 August 2013 the Applicant was sent to the Ukrainian psychiatric Hospital in the Dnipropetrovs’k.
In the SIZO’s physical and mental condition of the Applicant has deteriorated. The applicant was showing signs of lethargy of consciousness, aggression, and depression was replaced. The absence of conditions that are necessary for the treatment of psychiatric and neurological diseases applicant, supported by a medical certificate issued by the SIZO at the request of lawyer of the SLC.
The Applicant is going to complaints to the ECtHR under Article 3 about the account of impossibility to receive appropriate medical assistance during his detention and on account of inappropriate conditions of detention in SIZO, under Article 8 on account of interference with his right to respect for his private life, under Article 13 on account of absence at his disposal an effective domestic remedy for his complaints under Articles 3 and 8 and under Article 34 on account of hindrance by the State in the present case to the effective exercise of the applicant’s right of application.
3. Case of Biryukov
Mr Sergey Dmitryevich Biryukov, is a Ukrainian national, who was born in and now is living in Kharkov, Ukraine.
The main problem, which claimed by the SLC client: causing injury the person caused by state. The applicant also complained of the failure of the state to the status of the person affected by the Chernobyl nuclear power plant based on the analogy of the law, because there is no specific legislation governing the order compensation to persons affected by the impact of consequences the Chernobyl accident.
During 2011-2012, Birykov and the lawyer of SLC tried by courts to get compensation for material and moral damages from the government for causing injury of the state.
15.11.2012 Kharkiv District Administrative Court ordered the dismissal of Biryukov’s claim.
30.11. 2012 the lawyer of SLC on behalf of the client appealed to the Kharkiv Administrative Court of Appeal this decision.
18.02.2013 Kharkiv District Administrative Court made the decision of dismiss Biryukov’s administrative claim for recognition of inactivity illegal and obligations to hand over documents to the regional committee.
15.11.2013 Kharkiv Administrative Court of Appeal made the decision of dismiss the appeal of Biryukov.
08.04.2013 Supreme Administrative Court of Ukraine made the decision of refuse the opening of any appeal process by his appeal, filed on behalf of the representative.
In December 2013 the SLC lawyer has lodged a complaint to the ECtHR (see case of Biryukov v. Ukraine in par.2.3 above).
4. Boychuk case
In September 2005 a District court of Odesa region convicted B. to 5 years of imprisonment for a burglary committed in 2002-2004.
In July 2010 another District court of Odesa region convicted B. to 8 years of imprisonment for armed robbery committed in 2003.
Herewith, the court didn’t apply the rule for imposition of punishment according to which when imposing the final punishment for cumulative crimes it was necessary to deduct the term of sentence served wholly or partly under the previous sentence. As a result of such improper sentencing B. continues to serve his sentence in a penal colony instead of being released in December 2012.
B. filed an appeal on the court’s verdict and the court of appeal ordered the court of first instance to impose a sentence according to the law. However, the court upheld the punishment. The attempts of B. to appeal the court’s ruling weren’t successful. If the court deducted the term of previously served sentence when imposing the final punishment to him in 2010, B. must have been released from the colony in December 2012.
In the end of 2013 B. appealed to the Strategic Litigation Centre. The lawyer drafted an application on the crime committed by the judge, namely against the knowingly unjust verdict in the part of imposing final punishment. After B. submitted this application to the prosecutor’s office of Odesa region the prosecutors refused to initiate criminal proceedings against the judge. At the same time the prosecutor’s office informed that it prepared cassation appeal to the High Specialized Court of Ukraine. Currently B. is waiting for the prosecutors’ actions.
5. Case of Burakov v. Ukraine
The applicant is a mother of Oleksandr Burakov, Ukrainian national, lived in Kherson. In February 2010 he was arrested on suspicion in illegal acts with drugs, and was detained in a temporary detention centre. In the centre he was frozen in the cell and got pneumonia. Two week later the applicant was brought to the Kherson SIZO. On 5 March 2010 the applicant died in Kherson SIZO from bronchopneumonia.
The applicant was HIV-infected and a drug user, moreover he was a patient of opioid substitution therapy that discontinued after he is having been detained.
At the end of 2011 the SLC lawyer lodged the application to the ECTHR on the violation of Article 2 of the Convention, namely on the matter of absence of adequate and timely medical care during his detention.
In 2011 the lawyer practicing in Kherson participated in proceedings with a support of the SLC in course of the case. In 2012 he complaining the decisions on refusal to instantiate criminal proceedings issued both by the district and Kherson regional prosecutor’s offices.
In 2012 the claim against the Kherson SIZO and the Kherson police lockup has been lodged. During the civil proceedings a complex medical examination was conducted. At the same time the lawyer continuously complained the prosecutor’s decisions to refuse initiating criminal proceedings both in common courts and administrative courts. Now the High Administrative Court of Ukraine has quashed the decisions of lower courts, and remanded the case for retrial to the first instance court.
In 2013, lawyers with a support of the SLC continued appeal of improper medical care in the Kherson SIZO and Kherson police lockup, as well as the failure to institute criminal proceedings on applications for the above omission of medical personnel in the prosecutor’s office.
January 24, 2013 the High Specialized Court of Ukraine on Civil and Criminal cases cancelled all decisions inferior courts. In this decision there are three pages of text in which consist thorough analysis of all material facts of the case with reference to its relevant materials. No exaggeration to say that this is actually the only case in Ukraine, where the court of the cassation instance in proceedings in criminal proceedings not associated with the consideration of the case is not a criminal prosecution on the merits, but only complaints procedure separate decision on the results of investigation checking so thoroughly considered purely medical aspects of the case. The Panel of judges of the High Specialized Court of Ukraine on Civil and Criminal cases did not boil standard "incompleteness and one-sidedness of the inspection," and spent most thorough analysis of all the circumstances of the case.
In 2013, the statement about the criminal offense has been registered in the Unified State Register of pre-trial investigations. It was an investigation that was closed by the decision of the investigator. The investigating judge overturned that decision and ordered the investigating authorities to continue the investigation.
SLC is now representing the applicant in a civil case, in which mother of the applicant required for non-pecuniary damage obtained from the death of her son.
The first instance court completely rejected the applicant’s claim; the Court of Appeal upheld that decision changes. The lawyer filed a cassation complaint against these decisions. Currently the case was pending before the cassation court. The cassation court refused to examine the case on the merits. The decision was sent to the ECtHR for joining to the applicant’s case file.
6. Chenchevik case
In April 2010 criminal proceedings on the matter of alleged selling of drug were instantiated against C. The evidence of the case were forged and C.’s confession in commitment of the crime were taken under police during his detention in a police station. He was severely beaten up, caused fractures of his ribs, transported to a civil hospital, underwent to a surgery of his lungs (pneumothorax) and was in the hospital during 13 days. During three years he and his lawyer from the SLC complained numerous violations of law to prosecutor’s office, courts of common and administrative jurisdiction but in vain. In 2011 the criminal case against C. had been terminated, but the decision was quashed by the appellate court. In 2012 the new trial against C. started, then delayed for almost one year, and in 2013 the proceedings were renewed again.
The SLC lawyer continued to represent the client in these proceedings. The lawyer moved to the court with motions to order forensic report to be send to the court, as well he directed requests to the hospital with the medical history of the client. The hearings have been delayed many times because of non-appearance of the prosecution witnesses to the hearing, and the court ordered to attach them for being questioned forcibly. At last, the prosecution had proposed to the C. to dismiss the case, and he agreed. The defendant was released from criminal responsibility.
7. Cases of Deriy and others
The first applicant, Mr Alexandr Vasylyevich Deriy, is a Ukrainian national, who was born in 1953, and is currently detained in Pervomayskiy, Kharkiv region, Ukraine.
On 27 December 2010 Chief of the "Zmiiv’s regional hospital" Mr. Lysak M.P. actually eliminated stationary of the Byrky’s district hospital by order № 408.
On 10 March 2011 the residents actually learned about the closure of the Byrky’s district hospital when came to the building and saw that the entrance to the hospital was closed on the lock. No public hearings on the matter have been conducted.
On 25 June 2011 the Applicants filed a complaint to the Kharkiv District Administrative Court, which asked for a violation of their right to timely medical care and to open the hospital.
On 13 December 2011 Kharkiv district administrative court rejected the claim.
On 17 April 2012 Administrative Court of Appeal of Kharkiv region ordered the closure of the court of appeal proceedings in the case concerning the head doctor communal health "Zmiiv’s regional hospital" on the grounds that the Head Doctor is not a person of public law. In another part of the proceedings was closed (relative inactivity of the Department of Health of the Kharkiv region). The Administrative Court of Appeal of Kharkiv region upheld the decision.
On 12 May 2012 the Applicants filed the cassation to the Supreme Administrative Court of Ukraine.
In November 2012, the monitoring group, which consisted of representatives of the Ombudsman and legal expert of the KHPG, visited the hospital to monitor violations of the law, particularly Article 3 of the Convention The results of the visit members of the group was compiled report of reported violations and recommendations for addressing them.
On 16 July 2013, Supreme Administrative Court of Ukraine made a decision of partial satisfaction of the requirements of the applicant and sent the case back to the matter of fact in Kharkiv District Administrative Court.
In October 2013 Kharkiv district administrative court delivers a judgment on the benefit of the plaintiffs. The court declared the actions of the Chief of the "Zmiiv’s regional hospital" Mr. Lysak M.P. aimed at closing the Byrky’s district hospital as an illegal. The court also declared inaction of the Department of Health of the Kharkiv region as an illegal.
In January 2014 The Administrative Court of Appeal of Kharkiv region upheld the decision.
The applicants considers that the actual acts and omissions of defendants, aimed at closing the district hospital, causing them personally big difficulties in obtaining medical care and daily life as it actually is unable to get medical care and it’s violation of Article 3 of the Convention.
The applicants complaints that the closure of the hospital were also violated provisions of the United Nations Convention on the Rights of persons with disabilities.
8. Dimov & Avramenko
Dimov and Avramenko served their sentences in a penal colony of Kirovohrad Oblast. They developed hostile relations with the administration of the colony. They were constantly subjected to the disciplinary measures and they were recognized as persistent violators of the detention regime. In fact they were constantly kept if the remand centre.
In February 2013 there was one case recorded where they expressed their threats of application of physical violence against the representatives of the colony administration. Herewith, the alleged victims which were the staff of the colony didn’t have injuries from this incident, and Dimov and Avramenko totally deny their involvement in such acts.
In April 2013 there were criminal proceedings initiated against them under Article 345 of the Criminal Code of Ukraine “Threat or Violence in Relation to Employees of Law Enforcement Authorities”.
In June 2013 the indictment in respect of Dimov and Avramenko was directed to the district court of Kirovohrad Oblast. The accused totally deny their guilt in the alleged commission of the crime. Our lawyer filed petitions to call several witnesses for questioning to the courts hearing, the part of which was satisfied by the court. Currently the proceedings on the case are on-going.
9. Case of Elamonov
On November 17, 2013 an Uzbekistan citizen who arrived from Istanbul, was detained in the Kharkiv Airport on the reason that he had been placed into an international wanted list by law-enforcement bodies of Uzbekistan.
In a day after the detention of E. in the Ukrainian border checkpoint a district court of Kharkiv city issued a ruling about temporary arrest of E.
KHPG knew about the case from Internet, and the SLC lawyer visited E. in Kharkiv detention centre (SIZO).
It was cleared up that E.’s family members had been subjected to political persecutions in Uzbekistan, and till today they were serving their prison sentences. Due to the fact that E.’s relatives were subjected to political persecutions there are the reasons to assume that in a case of his extradition to Uzbekistan E. will also be persecuted for political reasons, and there real danger for his life in Uzbekistan.
E. through the lawyer applied to the UN High Commissioner for Refugees (UNHCR) office in Kiev for assistance in obtaining a refugee’s status. The UNHCR office in Kiev cooperates with the SLC in the matter of applying to the State Migration Service (SMS) for refugee’s status, which according to law prevents the person from extradition to a requested country. The UNHCR office in Kiev representative visited E. in SIZO, and granted an assistance in refugee’s proceedings.
On December 16, 2013 the Kharkiv oblast prosecutor’s office lodged a motion to apply to E. an extradition arrest, and on December 17 a district court granted this motion and ordered E. to be kept in Kharkiv SIZO. The SLC lawyer prepared and lodged an appeal but until the end of the year the appeal was not examined by the appellate court.
At the end of December E. addressed to the SMS an application for obtaining a fefugee’s status. Until no there are no official information from the prosecutor’s office about its intention to issue a decision to extradite E. to Uzbekistan.. In case of issuance of the decision the lawyer will complain the decision to a district court and, in case the decision being upheld by the court, to the appellate court. In case of refusal to grant the appeal the SLC lawyer intents to apply to the ECtHR with an application according to the Rule 39 of the Rules of the Court.
10. Glavatiy case
In 2006 Vladimir Glavatiy, Urrainian national, allegedly suspected in robbery, was arrested in Kiev and brought to a district police station. In the station he was cruelty tortured and get a lot of injures, including fractures. To hide the obvious signs of torture the police placed him to a psychiatric hospital, where he was kept until the superficial signs of torture (bruises) disappeared. As there was no evidence of involvement of the man to the criminal activity the case in December 2007 was dismissed and he was released from custody. In the results of the police abuse he became incapable to speak and to hear, and had very limited ability to write with one hand.
But this victim of police abuse continuously complain to it, and in June 2008 he was arrested for having committed several episodes of sexual crimes (rape and others). Since that time the lawyer have tried to prove innocence of the man, but she is under a strong pressure of the prosecutors’ system unofficially interfering to courts. Twice a district court held a judgment of conviction of the defendant, and twice the lawyer achieved in a court of appeal cancellation of the judgments. Then the district court thirdly had passed the next judgment of the G.’s conviction with a sentence of 8 year imprisonment, and the lawyer again lodged an appeal to the judgment. At the end of the year the appellate court upheld the judgment of trial’s court. The SLC lawyer has lodged an appeal to the cassation court.
11. Gurkovska case
In August 2013 an information about abuse relating to prisoners of in Strizhavska correctional colony №81 appeared in media. Natalia Hurkovska lawyer practicing in Vinnitsa had the intention to meet with the convicts. The lawyer sent in advance a letter to the colony asking the administration about the time for the meeting, but had not received a reply to the letter. Then the lawyer came to the colony and officially applied for the meeting to the administration, with adducing all necessary documents authorizing the meeting with the inmates. After some delay she was refused with the meeting with reasoning that she had no contract with the prisoner, notwithstanding she had an order for providing legal aid for the inmate, as it prescribed by the Criminal Correctional Code of Ukraine. After two unsuccessful attempts to meet with client the lawyer lodged both criminal complaint to a district prosecutor’s office for hindering to lawful lawyer’s activity and a law suit to a district administrative court for illegal actions of the colony ’s administration.
The prosecutor’s office did not file the criminal complaint in the criminal registry but instead of it replied to the criminal complaint as if it was simple citizen’s applications, without special registration. The lawyer lodged a complaint to a district court on the prosecutor’s inactivity in form of refusal to file the complaint and to initiate a criminal investigation.
On 25 October 2013 an investigating judge of the Vinnitskiy district court of Vinnitska region issued a ruling about satisfaction of the lawyer’s complaint on inactivity of the prosecutor concerning non-registering in the Unified Register of Pre-trial Investigations of an application or a report of criminal offense.
On 1 November 2013 the Vinnitskiy district administrative court issued a ruling about satisfaction of the administrative suit concerning recognition of the illegal actions of the Stryzhavska penal colony with the obligation to provide the prisoners with the meeting with the lawyer.
For today the Investigation department of the Prosecutor’s Office of Vinnitska region is conducting investigation according to criminal complaint of the lawyer on the refusal to give her a meeting with the inmates. The lawyer has been questioned as a witness.
Pre-trial investigation under proceeding on the lawyer’s criminal complaint continues, and the lawyer has the intention to bring guilty persons to criminal responsibility for impeding of lawful activity of the lawyer.
12. Guzenko case
In November 2011 1 month old baby girl lived in rural area of Kharkiv oblast started running temperature. During the first month of her life the girl grew normally without any health problem. The baby was examined by the pediatrician and prescribed to e hospitalized in regional children hospital in Kharkiv city. The next day the child was transported to the hospital, but a reception division doctor refused to take the child with the temperature 38.6o for in-patient treatment. The baby’s parents came back to their village, and tonight the child state seriously worsened and the temperature raised almost to 40o. In the morning the baby was transported to the hospital again, and this time was taken for in-patient treatment. After 1,5 day the child has died. The reason of his death was determined as congenital leukocytosis.
Originally the investigation authorities refused to initiate criminal proceedings having not found “sighs of a crime” even without conducting the forensic medical examination. After the baby’s mother complaint the case was filed in the criminal registry, but soon the proceedings were terminated on the ground of absence of corpus delicti. The forensic examination report contained the conclusion on correctness of the actions of the medical staff involved in the case in fact without any reasoning of the 1.conclusion as well without references to the protocols of medical aid adopted by the Ministry of Health. The SLC lawyer complained the decision to terminate the case to a district court, and the court quashed the decision. Now the investigation continue to investigate the case. The main problem is in that there is no alternative expertise in Ukraine to get independent expert’s opinion on medical issues.
In December 2013 relatives of the died child refused to continue the proceedings against the hospital, and the case has been closed.
13. Ikan case
In 2011 a police officer was detained on suspicion of drug selling. Upon termination of the pre-trial investigation the case was transferred to a district court in Kharkiv city where the case was long heard and repeatedly postponed due to the absence of witnesses.
As a result of numerous petitions of the lawyer the court found the charges of drug selling unsubstantiated. And herewith the court based its judgment including on the European Court of Human Rights practice in the part that a verdict can’t be based solely or predominantly on the testimonies provided in the course of pre-trial investigation which the party of the defence can’t challenge. Based on the necessity to comply with the adversarial principle by the parties the court declined the arguments of the prosecution which didn’t provide the presence of its witnesses in the court.
Also the court was critical as regards the confession of the accused which was provided by him in the course of the pre-trial investigation. He claimed in the court that it was provided under pressure of the police officers.
In the absence of the results of the prosecutor’s check on the complaint against the illegal actions of the police officers the court found that the version of the accused wasn’t refuted.
Under such circumstances the court interpreted the uncertainty in committing of a crime by the accused in his favor and found him innocent of drug selling.
14. Kabanemko and Lozhenko case
In February 2013 two college students Kabanenko and Lozhenko were arrested by police in Nikolayev and brought to a district police station on a suspicion of having committed a robbery of a handbag of a old woman. The arrest was conducted shortly after call to the police emergence phone number. In the police station they were forced to confession y means of torture, and then the boys signed all the necessary documents drew up by the police.
There are no eye witnesses of the crime, as well any physical evidence (fingerprints, belonging and money of the victim at the alleged perpetrators of the crime, biological evidence etc.). The only evidence of the crime is testimonies of the victim which allegedly recognized the boys. The description of the boys given by the victim significantly differs from both their physical characteristics and their closes, moreover it was modified by her during of the proceedings to be likely to the factual appearance of the defendants.
The case was directed to a district court, where the prosecution did not presented the original testimonies of the victim. Moreover the court declined the defendants motion to request the video recordings from a camera at another place of the city allegedly proving their alibi. As well the court refused the defendant’s motion to call witnesses of the defence.
The trial court found the boys guilty in aggravated robbery and sentenced them to imprisonment. The SLC lawyer came into the case at the stage of appeal. He lodged the appeal to an appellate court arguing the unlawfulness of the conviction with violation of principle of adversary proceedings and equality of arms of the parties in proceedings. As well he asked the appeal court to examine some evidence that was declined to be examined by the trial court. The appellate court is expected to examine the case soon.
15. Korneykova case
K. has been beaten by the police in course of her arrest in January 2012. Her mother has filed a criminal complaint to a district prosecutor’s office, and after that there was no information about disposition of the complaint. The prosecutor’s office refused to initiate a case.
A lawyer of the SLC drafted a complaint to the prosecutor’s decision to the district court. The court declined the complaint.
At the end of 2012 the applicant lodged the criminal complaint against the SIZO administration and the children’s hospital medical staff.
In 2013 at the same time with the complaining procedure in the ECtHR (see case of Korneykova and Korneykov v. Ukraine in par.2.2 above), proceedings in the national courts on behalf of the applicant continued. Having started the criminal investigation upon the applicant’s complaint January 2013, a district prosecutor’s office in April 2013 terminated the proceedings. The applicant’s lawyer prepared and lodged the complaint to the prosecutor’s office decision. After an original refusal of the district court to accept the complaint and the following appeal proceedings the complaint was accepted by the court. Finally the prosecutor’s decision to discontinue the investigation was reversed, and the case was returned to the prosecutor’s office for continuance of the investigation. Now the proceedings are pending.
16. Kostina case
In January 2013 there were initiated criminal proceedings on charges of committing a crime stipulated by Article 166 of the Criminal Code of Ukraine that is a wilful failure to perform the duties established by the law to care about the child which has led to serious consequences. The accused didn’t have a lawyer during the pre-trial investigation, and she admitted her guilt of committing a crime.
After the case was transferred to a district court in the city of Kharkiv the lawyer of the accused filed a petition on termination of the proceedings which was declined by the court.
The prosecutor insisted on imposition of real punishment. Owing to the well-reasoned arguments of the lawyer the court imposed the minimal term of the punishment with a probation period.
17. Kryvdyk case
The applicant, Mr. Kryvdyk R., is a Ukrainian national, living in Lviv region, Ukraine.
10 April 2009 the Applicant was detained by police as a person suspected of a crime. Over 1, 5 days the applicant was detained in the police department without providing food and adequate conditions for sleep. During his detention, police officers forced the Applicant to sign a voluntary admission that he committed the crime.
The detention of the Applicant was not registered documented, and has been issued a voluntary attendance of the Applicant to the police department.
When the Applicant was in the police department, police officers conducted a search without the permission of the court in his apartment.
The SLC lawyer has filed complaint against the actions the police officers in court. The court found these actions are illegal. After consideration in court, the case was returned to the pre-trial investigation.
Due to the large number of complaints in 2013 criminal case against the Applicant was terminated due to lack of the corpus delicti in the his actions. This result corresponds to the acquittal by the court. Now the lawyer helps the applicant to seek a compensation for pecuniary and non-pecuniary damages inflicted with unlawful criminal persecution.
18. Lopushynskaya case
The applicant, Ms Lydmyla Mykytyvna Lopushynskaya, is a Ukrainian national, who was born in 1958 and is currently living in the Kharkiv region, Ukraine.
In the April 2010 the applicant addressed to the doctor Hopko, who done pharmacological blockade to her in violation of the order of the procedure.
Besides, the doctor Hopko at that time had only certified as the doctor neurosurgeon, and data manipulation carried out the study in the own homes, converted at a medical office, where there was no necessary equipment that could be helpful in the event of a situation that need of emergency assistance.
As a result of the injections made by the doctor, the applicant immediately lost sight and hearing and smell, state of her health was extremely difficult. As a result of the injuries she became disabled.
The applicant was in the intensive care unit for 20 days, which caused her and her family considerable mental suffering. During this time, the applicant, her husband and daughter didn’t know whether the doctors will return her to life that struck the applicant and the members of her family considerable damages.
According this fact in April 2010 initiated a criminal case, but the investigation is still on-going.
In the April 2013 the legal expert of the SLC on behalf of the applicant filed the civil claim against the doctor Hopko in the Octyabrsky district court of Poltava.
20. Lunev case
On 20 January 2012 Mr. Andrey Vladimirovich Lunev, was arrested upon suspicion of drug trafficking.
On 30 January 2012 Lunev was placed to the SIZO. Upon arrival he was diagnosed with toxic encephalopathy and neuropathy caused by a prolonged use of drugs. On 22 February 2012, following its inquiry, the SIZO administration was informed by a hospital (name unreadable) that he had been diagnosed with the HIV (III stage).
On 17 January 2013 in view of poor state of health of Lunev his lawyer lodged the request to the ECtHR for application of interim measure under Rule 39 of the Rules of Court asking for his placement into the hospital (see case Lunev v. Ukraine in par.2.3 above).
On unspecified date the applicant was transferred to Alchevsk Temporary Detention Facility (“ITT”).
On 30 January 2013 in Alchevsk ITT Lunev was beaten by the police officers for lodging his request to the ECtHR for application of interim measure under Rule 39 of the Rules of Court.
On the next day his lawyer complained about this matter to the court. Lunev was called an ambulance and diagnosed with a “possible blunt abdominal trauma”. He was brought to a hospital and examined by a surgeon. The latter concluded that Lunev could be detained.
He complained about the beatings to a prosecutor.
On 25 February 2013 the Alchevsk Prosecutor terminated the proceedings for absence of crime. Police officers and other persons present in the ITT on 30 January 2013 gave a detailed description of what had happened in the ITT on that day and stated that nobody had beaten Lunev. The video surveillance system of the ITT was, however, broken between 26 January and 2 February 2013. The surgeon, who examined the applicant on 31 January 2013, testified that Lunev had had no injuries. The prosecutor also referred to the conclusion of an undated forensic medical examination that he had no injuries.
Lunev appealed against this decision to a court.
On 26 March 2013 Alchevsk City Court abolished the decision of the Alchevsk Prosecutor of 25 February 2013 on termination of the proceedings.
On 25 April 2013 the investigator of Alchevsk Prosecutor’s Office terminated the proceedings for absence of crime.
On 3 June 2013 the Prosecutor of Alchevsk cancelled the decision of the investigator of 25 April 2013. The proceedings are pending.
Lunev’s SLC lawyer continue representing him in the proceedings before the ECtHR (see case of Lunev v. Ukraine).
21. Lytvak case
In December 2011 Yuri Lytvak, Ukrainian national, was apprehended by patrol police officers and brought to a district police station in Lviv. The next morning he was forced to confess in having committed several thefts by means of torture. After the confession had been obtained he was transmitted to another district police station, where he was forced to confession in other crimes. The record of his arrest has not been filled out. In total he was illegally kept in police custody more than three days. The SLC lawyer lodged several complaints to district, city and regional prosecutor’s offices during the person’s detention. At once after release from the police custody the lawyer called ambulance and the man was transported to a hospital. He had a lot of bodily injures, particularly bruises which were filled up in medical records. Journalists from one TV channel interviewed the man.
After several attempts of the lawyer to convince the prosecutors to initiate criminal proceedings against the police one of the district prosecutor’s offices has opened the case. In July 2013 the investigation was completed and four police officers, including deputy chief of the police division, were accused in having committed of crime in abuse of power. The case with an accusatory act was directed to a district court of Lviv. It is a very rare occasion when police officers are prosecuted for abuse of power on presence only minor bodily harm of the victim.
A lot of witnesses were questioned in the court, and now the proceeding are coming to the end.
22. Mamedova case
The applicant was accused of a serious crime - distribution of drugs. During the trial it was used as a preventive measure on his own recognizance. In summer of 2012 the applicant was seriously ill and in September, 2012 she was diagnosed with HIV.
As a result of the criminal proceedings the first instance court found guilty of Mamedova and sentenced her to imprisonment. November 29, 2012 the Court of Appeal upheld the judgment the district court unchanged. The authorities had to take Mamedova into custody and deliver her to the place of punishment. Her state of health deteriorated increasingly.
Although the Criminal Code of Ukraine provides for the release of a person who suffers from a serious illness, punishment, including, before its execution, in practice, in most cases, the courts dismissed only persons who are serving their sentences. This position of the courts caused by the fact that the legislation provides list of diseases, which can be grounds for dismissal only from further punishment and not punishment before its serving.
However the SLC lawyer appealed to the hospital, which gave Mamedova medical care, with a request for medical commission. The SLC lawyer on personal appointments with the head doctor has achieved conducting medical commission for Mamedova.
The conclusions of the commission, which noted the presence of a threat to life and health in the case if Mamedova will stay in the conditions of the colony was obtained. The SLC lawyer filed a petition to the court to dismissal the client from punishment. At the court session upon the request of the SLC lawyer an infection doctor of the AIDS Center was questioned. The court reviewed all the medical documents. In February 2013 the court decided to release Mamedova from the punishment for disease.
23. Meliksetyan case
The applicant, Mr Edgar Samvelovich Meliksetyan, is an Armenian national, who was born in 1980 and is currently detained in Kharkiv, Ukraine.
On 5 April 2010 three police officers arrested the applicant with the application of physical force, applying to him the metal handcuffs.
Then they beaten Applicant in the District Police to forcing him to write a written confession to the crime.
After the beating, the police officers took on a personal car the Applicant to forensic expert, in order that she witnessed the applicant’s lack of injuries. 05.04.2010 forensic expert examined the applicant in the car and witnessed the lack of injuries, violating his job descriptions.
By the forensic medical examination of 18.05.2010, it was determined that the Applicant had suffered damage in the form closed head injury as a concussion, which refers to light injuries, bruises on the face and other body parts.
After beating the Applicant treated renal damage by now with a diagnosis of "subcapsular rupture of left kidney".
Since 2010 by now prosecutors repeatedly issued refusal to open a criminal investigation into the abuse of authority by one of the police officers, and as for misconduct of the forensic expert. With the help of the SLC lawyer the Applicant had repeatedly appealed these decisions to the court, which repealed these decisions as unfounded.
In 2011, the case against the two police officers who are accused with abuse of power in relation to the applicant was transferred to the Leninsky district court of Kharkiv.
Applicant in trial was granted victim status. From the third quarter of 2012 and currently the SLC lawyer presents Applicant’s interests as a victim in trial.
In the framework of trial the SLC lawyer requested to call witnesses whose testimony was not properly considered at the pre-trial investigation.
In February 2013 the applicant filed an application for a crime against a third police officer and a forensic expert under the new Criminal Procedure Code. The application was registered in accordance with the law. The criminal proceedings were instituted.
The applicant previously complained to the ECtHR under Article 3 about the ill-treatment by police officers with the aim of extracting his confession and under Article 13 on account of absence at his disposal an effective domestic remedy for his complaints under Articles 3.
24. Melnichenko and Levchenko case
On November 2012 in Ladyzhin city (Vinnytsia region) Melnichenko and Levchenko appealed to their employer demanding to pay their wage arrears for their work on building. The staff of the City Department of Internal Affairs of Ukraine beat them and applied the rubber sticks and handcuffs taken Melnichenko and Levchenko to the police station of the city. There police officers tortured applicants. As a result of illegal actions of the police officers Melnichenko and Levchenko received numerous injuries as bruises and bleeding. Levchenko received closed fracture of the left ulna in the lower third, the main phalanx of the second finger of the right hand and the head of the main phalanx of the fourth finger of the left hand.
Next day Melnichenko wrote a statement to the Prosecutor Office about his injuries, which were caused by police officers. On the same day the police officers, who tortured Melnichenko and Levchenko, filed reports about the alleged commission of the crime - resisting police officers, and in the same day a criminal proceeding was opened. After a week Levchenko also filed an application about criminal actions of police officers. The criminal proceedings at the request of Levchenko on the behaviour of the police officers were initiated after a week.
The police officers drew up protocols about administrative detention and administrative offense - allegedly malicious defiance of these men. About existence these protocols applicants find out only by reading the materials of the criminal proceeding against them, which was recorded on their rejection of the signature in the protocols.
December 5, 2012 the district prosecutor’s office ordered the closure of the criminal proceedings, which the next day was canceled by Prosecutor’s Office of the Vinnytsia region. Decision about closure of the criminal proceeding was canceled and sent to continue the preliminary investigation on the grounds of incomplete preliminary investigation.
January 4, 2013 Melnichenko and Levchenko finally got the memo about the procedural rights and obligations of the victims.
February 20, 2013 District Prosecutor’s office issued another decision to close criminal proceedings. The SLC layer appealed this decision to the court. April 25, 2013 Prosecutor’s Office of the Vinnytsia region canceled this decision because of the need for further forensic examination.
October 2, 2013 investigator closed the criminal proceedings on the grounds of lack of the corpus delicti in actions of the police officers.
December 10, 2013 on the complaint of the SLC lawyer this decision was cancelled by the district court because of violations of criminal procedural law at the pre-trial investigation.
February 27, 2013 prosecutor’s office sent to the court indictment on charges Melnichenko and Levchenko which was charged that they resisted the police officers and injured them. Presently the court proceeding continues.
Melnichenko and Levchenko are going to complaint to the ECHR.
25. Mykhalchenko case
In January 2013 a hung corpse of a sailor was found on one of the military ships in the territory of the military port of Ochakov city. The criminal proceedings regarding this incident were initiated and soon terminated because of the absence of corpus delicti.
The lawyer of the parents of the deceased visited the military unit (the ship) twice. He conducted the crime scene examination and participated in the questioning of the witnesses.
The investigation was again terminated. The lawyer appealed against this ruling and it was annulled by the military prosecutor’s office. Currently the investigation of the case is not finished.
In Mykhalchenko case upon his death on January 3, 2013 a petition was submitted, most of the items of which were fulfilled by the inspector with my participation. The place of incident was re-examined with detailed and panoramic photographing, all team members were questioned, as well as the boatswain, captain and commander of the unit, the logbook was demanded, the close friends of the deceased were questioned, the crew’s room where he lived was examined, the girl he was close friends with at the time of his death was questioned, as well as the persons on duty of the checkpoint, the telephone of Mykhalchenko was examined including the SMS which he received and sent immediately before death were read, and the witness who was with Mykhalchenko in Ochakov before his death . However, no direct or indirect evidence that the death was violent Mikhalchanka not produced was questioned. There weren’t find any enemies or foes of Mykhalchenko. Currently a few friends of Mykhalchenko are left to be questioned who at the time of investigation were absent from the unit (one was at sea and two of them did not already live in Ochakov by that time).
26. Nikonenko case
At the end of 2010-beginning of 2011 unknown persons had painted the walls of buildings and electrical towers in the city of Sumy. On the basis of this reason criminal case on disorderly conduct (hooliganism) was instituted.
Specifically N. had inflicted on indicated constructions images that look like the president of Ukraine with the red spot on the forehead. Other participants of this action had inflicted other images, in particular, the swastika.
The district court of Sumy has recognized N. guilty in commitment of actions, which observed in their content with a special cynicism. The court found described above image of the person with the mark on his forehead obscene, causing in others negative association with wounding or murder of a person.
The court ordered for N. real punishment in the form of 1 year of restriction of liberty. The defense lawyer of N. has prepared the appeal against the decision of the district court; however the Court of Appeal left it without satisfaction.
Then the SLC lawyer has prepared the cassation appeal. Both in the appeal and cassation appeal the lawyer has pointed on the lack of corpus delicti in actions of N. In particular, he noted that according to the position of the Supreme Court of Ukraine the images inflicted by N. did not belong to obscene, actions of N. were not directed at violation of public order as N. had inflicted his images at the night time with the absence of other people and his actions were not cynical as well as specifically cynical. In the last resort, according to a position of the lawyer, the actions of N. can be considered as provocation.
The appeal and cassation appeal also contained argument that the infliction of such images is the way by which N. expresses his views. The cassation has not been considered until now.
27. Muratov case
The case is connected with Gurkovska case were this lawyer has not been permitted to have a meeting with inmates of Strizhavska correctional colony №81 in August 2013 (see Gurkovska case in this par. below).
Only in December 2013, after having undertaken a lot of legal actions the lawyer got the opportunity to meet with the prisoners who remained serving their sentences in this colony. Four of them who wanted to meet the lawyer were transferred to other colonies on the territory of Ukraine. At the moment of meeting with the lawyer only two of prisoners confirmed that in August 2013 they asked to provide them with legal assistance. In addition to conducting interviews with these prisoners lawyer obtained their personal files to identify the prisoners, and got acquainted with the circumstances of serving sentences by the prisoners. As it is seen from the personal files of prisoners, the prisoners who asked for legal assistance after applying for such a legal assistance were subjected to strict disciplinary sanctions in the form of placement into a disciplinary cell or solitary confinement for minor violations of regime such as not-making of bed. A criminal investigation was opened against one of the prisoners. Obviously, the severity of applied sanctions did not meet the severity of the violations, even if they really took place. Moreover, the personal file of every prisoner lacked any information about explanation to them of their right for legal assistance, particularly during application of disciplinary sanctions.
The lawyer initiated prosecutor’s examination of the situation with M.
28. Ovsiannikov case
In 2003 Ovsiannikov was taken into custody on suspicion of committing a crime and was placed in detention in Sevastopol SIZO. There he was diagnosed with infiltrative pulmonary tuberculosis. He was informed about this only in 3 months after establishment of the diagnosis. Consequently, the treatment began later.
The prescribed treatment turned out to be ineffective. In addition, Ovsiannikov was detained as in SIZO, as in the temporary detention facility. He was also detained in the cell with other imprisoned suffering from the tuberculosis.
Convinced of inefficiency of the treatment the administration of the SIZO placed Ovsiannikov in the hospital of the Health Protection system where he was continuously handcuffed to the bed.
After the return of Ovsiannikov from the hospital to SIZO he was detained in a cell in conditions absolutely incompatible with the established standards.
In 2005 the lawyer filed a civil claim for compensation of non-pecuniary damage based on the Constitution of Ukraine (provisions of the Constitution are directly applicable), as well as Article 7 of the International Covenant on Civil and Political Rights and Articles 3 and 8 of the European Convention on Human Rights.
The courts of administrative and common jurisdiction one by one refused to consider the case on the merits referring to their lack of jurisdiction on this case. Finally the case was considered by the court of common jurisdiction in civil proceedings. The court of first instance refused to satisfy the claim. After this the lawyer prepared an appeal against this judgment. The court of appeal terminated the proceedings, having substantiated this by the fact that the law doesn’t provide for the legal succession in the disputes on compensation of non-pecuniary damage (in course of the proceedings there was a replacement of the plaintiff due to the death of Ovsiannikov).
The lawyer prepared a cassation appeal and currently the case is evoked to the court of cassation.
For today N. is waiting for the decision of the court of cassation.
29. Panych case
In 2010 the Panych was sentenced for seven years imprisonment and sent to serve his sentence to Berdichev penal colony number 70 in the Zhytomyr region for the crime he never had committed. Panych appealed this judgment to higher national courts, but they have been denied.
The feeling of injustice towards themselves sharpened in him a desire to help people who have been convicted unjust. Such advocacy position was not welcome by the administration of the colony, where right from the beginning of serving the sentence began psychological and physical pressure. Panych actively assisted the inmates in defending their rights and refused to cooperate with the administration of the colony on unlawful making up secret reports on other inmates. In response He was imposed by disciplinary sanctions in a form of placement to a single camera for the delicts he had not committed. He did not always informed of what he had been punished. In March 2013 Panych by coincidence saw the complete list of his delicts in the course of consideration by an administration of the colony on the possibility of replacing his further punishment regime to a milder due to the departure of more than half of his sentence. In change of the regime Panych was refused because of his personal file contained 23 violations of the discipline, much of which has been falsified by the administration of the colony.
Panych filed an application to a local court on the issue of the illegality of failure to mitigate his regime of punishment. During the proceedings in the courts of first instance and appellate SLC lawyer lodged number of motions: to call witnesses, to adduce and to consider of his personal characteristics, but the courts unjustifiably denied the motions. When deciding courts took into account only the characteristics of the administration without consideration of the inmate’s explanation. Currently SLC lawyer appealed the judgments to the court of cassation.
30. Popov case
The applicant, Mr., Popov is a Ukrainian national, who is living in Donetsk region, Ukraine.
October16, 2012 the applicant was unlawfully detained by the police officer in the city of Mariupol. Unknown persons who introduced themselves as police officers put handcuffs on the Applicant, put on his head the plastic bag and put him in the car, in which took him into the wood.
There the police officers tortured the Applicant and beaten him in different parts of the body, connected to him an electric current, forcing him to confess to the murder. After the torture police officers brought the Applicant to the police department, where they continued interrogation concerning the murder of an unknown person.
After he was released from police custody, the Applicant requested medical assistance. Emergency room’s doctors had fixed the presence of his injuries.
In November 2012 the applicant complained to the prosecutor’s office of the illegal actions of the police officers. According to his statement the prosecutor instituted criminal proceedings.
February 14, 2013 the prosecutor’s office the Donetsk region issued a decision on closure of criminal proceedings. SLC lawyer appealed the decision in court.
March 14, 2013 an investigator the Donetsk region ordered the closure of criminal proceedings on the complaint of the Applicant. In this decision the investigator indicated that the actions of the police officers found no corpus delicti.
The applicant’s lawyer complained to the Prosecutor General Office of Public Prosecutor against the decision of Donetsk region and it was cancelled. Currently, the investigation of the case reopened.
The Applicant is going to complaints to the ECtHR under Article 3 about the inefficiency investigate the allegations of torture by the prosecution authorities.
31. Povoroznyy case
The applicant, Mr. Oleksandr Povoroznyy, is a Ukrainian national, who is currently living in Odessa region, Ukraine.
In December 2011 the Applicant was arrested on suspicion of theft and was placed in detention center.
In 2012 the applicant was convicted Shevchenko’s district court of Chernovtsy for committing theft. He was sentenced to imprisonment for 1 year and 6 months.
The convicted Povoroznyy had severe diseases, such as AIDS, viral hepatitis and other diseases. While he was in detention, his health had sharply deteriorated. Taking into consideration the conditions in which the convicted was held and the necessity of specialized treatment the diseases reached the critical level.
The doctors provided medical assessment that there was danger to his life. The lawyer of the SLC filed a claim to the European Court of Human Rights asking to apply Rule 39 of the Rules of the Court. The European Court of Human Rights ordered in its letter to provide medical assistance to Applicant immediately to examine whether he had AIDS.
After this the administration of the penal colony petitioned to the local court for release of the Applicant on the grounds of the recommendations of the European Court of Human Rights.
July 5, 2013 the Applicant left the prison by a court decision to release him from custody due to illness.
32. Rystsova case
In December 2010, a police officer of one of the district department of Kharkiv came to homeownership of R., located outside of Kharkov, climbed over the fence and into the yard and letting another two men into the yard demanded to let him enter into the house. R. refused to let him inside then a police officer knocked the door, entered the house, caused R. bodily injury, made an illegal search of the house, and took the victim’s money. Another man beat minor son of R., caused him minor bodily injuries.
In connection with these events R. lodged a complaint to the Prosecutor’s Office. Prosecutor’s office issued many decisions about the refuse to open criminal proceeding which were appealed by the lawyers of the KHPG. At the result of consideration of these appeals the Prosecutor’s decisions were quashed by courts and prosecutors of high lever. In 2012 the district Prosecutor’s Office of town of Zarkova instituted criminal case against a police officer under Articles 365 (abuse of power), 162 (trespassing) and 186 (robbery), and he was removed from his post. Criminal cases against other persons were allocated in separate proceeding.
Since April 2012 criminal case is considered in the district court of Kharkiv region, during this period of time a large number of witnesses both on the part of prosecution and the defence have been interrogated. At the beginning of July 2013 the case was referred for further investigation due to established by the court impossibility to consider the case without its combining with the criminal cases against other persons, who had invaded to homeownership of the victim. The lawyer has filed a complaint against the mentioned resolution, and the Appellate Court has quashed the decision and ordered to continue the trial. Now proceedings in the case are pending.
33. Savinov case
Eduard Savinov was sentenced to 9 years of imprisonment. He had served most of the sentence and his health had sharply deteriorated. He suffered from AIDS, viral hepatitis and other diseases. Taking into account the conditions in which the imprisoned were detained and necessity of specialized treatment the diseases reached the critical level.
The case of Eduard Savinov was brought under control of Kharkiv Human Rights Protection Group and Odessa Charity NGO “Soniachne Kolo”.
This case is an illustration of the problems of the penitentiary regarding provision of medical aid, releasing of inmates suffering from serious illnesses from rest of a sentence, including the reluctance of courts to release convicted persons being in danger for their lives due to luck of medical treatment. After the application of Rule 39 of the Rules of the Court the administration of the penal colony started to claim to the court for release of Savinov. The administration had lost in three trials in the local court trying to protect the right of the imprisoned to life, which is a rare case in Ukraine.
According to Article 84 of the Criminal Court of Ukraine a person who has become ill with incurable diseases during the detention period can be released for health considerations, if this disease prevents him/her from further serving of the sentence.
According to the Order of the State Department on Execution of Sentence and Ministry of Health of Ukraine № 3/6 from January 18, 2000 there is a list of diseases which could be an excuse for release of the imprisoned from further serving of the sentence for health reasons.
When adopting a decision on release of a person for health considerations according to Article 84 of the Criminal Code of Ukraine, the court shall take into account the seriousness of the crime committed, information on the person, the presence of encouragements and absence of penalties, i.e. the condition of the person’s improvement.
In the majority of similar cases when a person suffers from incurable diseases and dies from the failure to provide him/her with medical assistance the administration of the penal colony considers that the person didn’t choose the way of correction or that he/she was convicted of a serious crime. In this situation either the administration of the penal colony fails to file a petition for release of the imprisoned or even if such a petition is filed to the court, the court dismisses it.
On December 15, 2012 Savinov applied to the reception room of Odesa Charity NGO “Soniachne Kolo” asking to help him to gain the vitally important medicines taking into account the seriousness of his health condition and the fact that he was detained and unable to get adequate medical treatment. The legal assistance on the case was provided by the lawyers of Kharkiv Human Rights Protection Group, and the SLC lawyer represented the interests of the imprisoned before the court.
Administration of the penal colony petitioned to a local court three times for release of Savinov, and the local court dismissed the claim three times despite the recommendation of the ECtHR indicated application fo interim measures according to the Rule 39 of the Rules of the Court (see Saviniv case in par.2.3 above).
Savinov’s lawyer filed an appeal against the decision of the court of first instance. The court of appeal in June 2013 satisfied it. In its decision it stated that the court of first instance had focused its attention on the previous convictions of the imprisoned, the seriousness of the crime committed by him and his behaviour while serving the sentence. However, the court of first instance hadn’t paid attention to the type and severity of the diseases which were incurable, the health condition of the imprisoned and prospects for his treatment. Specificity of the hearing is that Savinov was questioned by the court in a mode of video conference from the SIZO premises. Previously there were cases when people were brought to the court on stretchers and the ambulance was on duty near the court’s premises.
In total Savinov has spent 94 days in detention starting from the moment of establishment of the diagnosis and up to his release for provision of adequate medical care.
Shabala was convicted for assault related to robbery by the verdict of a district court of Luhanska Oblast in January 2013 under Section 3 of Article 187 of the Criminal Code of Ukraine.
When delivering the verdict the court committed a number of violations, in particular:
- It didn’t check the alibi of the accused;
- It violated the right to a lawyer at the beginning of the criminal prosecution;
- The detention was carried out in breach of the law;
- There were violations during the collecting and fixing of the material evidence;
- There are also some signs present of the falsification of the prosecution evidence.
The lawyer drafted an appeal against this verdict, and in April 2013 the conviction was overturned by the Court of Appeal of Luhanska Oblast. The case was returned to the court of first instance for a new trial.
Currently a new proceeding on the merits of the case is initiated.
35. Shmargalov case
In August 2012 the police officers of one of the district of Kharkiv have detained Mr. Shmargalov (hereinafter – the applicant) who was going to a work in the café. The applicant was forced to go the police department. On the morning and evening of the following day police officers using threats and physical violence forced him to give confession in the illegal drug trafficking.
Unable to bear the torture the applicant has signed the confession. All night he was kept in the police department. Next morning, being in the toilet and understanding that after he signed the confession he could be convicted to the long term imprisonment, the man under stress tried to escape from police department through the window of the toilet. He tried to go down the wall but fall on the asphalt. At the result of the fall both arms and both legs of the applicant were broken. He was delivered to the hospital and then operated. The applicant lost the ability to move and use his arms’ function.
Despite the fact that accusation was completely falsified in October 2012 the pre-trial investigation was terminated and the case on the unlawful drug trafficking was delivered to the court.
From 2013 the proceeding in the district court of Kharkiv was started. As the applicant is unable to participate in the court hearing on the reason of his inability to go to the court the consideration of his case was terminated until his convalescence.
The defense lawyer of the applicant lodged complains on unlawful actions of the police officers to the Prosecutor’s Office. After verifications on these applications Prosecutor’s Office issues decisions about refuse to institute criminal proceeding, which later were quashed by the court. At the end of the year the case has been remitted for conducting additional investigation, and his preventive measure – obligation not to leave a place of his residence without the investigating authority permission has been cancelled.
At present the appealing against unlawful actions of police officers is continuing.
36. Shumik case
In 1997 a newly born baby was infected in one of the hospitals in Dnipropetrovsk due to the medical error. The child underwent medical treatment in the pathology department for the new-borns and received numerous intravenous injections. In this way she was infected with HIV.
During 14 years the mother of the child tried to bring the perpetrators to criminal liability but in vain. Prosecutors’ offices firstly refused to institute criminal proceedings, and having opened the criminal case then dismissed the prosecution. Civil claim against the medical clinics in which the infection allegedly had been admitted was rejected by a first instance court.
Our lawyer lodged the appeal, and appellate courts reversed the judgment of the first instance court and return the case for a new trial. Due to the new evidence gathered by the lawyer the court of the first instance partially satisfied the claim (900,000.00 UAH). It refused to compensate the pecuniary damage since its size was unproven. As regards the non-pecuniary damage – the court awarded compensation in the amount of 135,000 UAH.
The judgment was appealed both by the applicant and the defendant – the children clinics appeal to the court of appeal, the first on with the requirement to satisfy the initial claim in full and award a bigger amount of compensation of non-pecuniary damage, and the second one, to refused the claim.
The panel of judges of the court of appeal ruled that the arguments of the appeal as regards the amount of the non-pecuniary damage were substantiated. That is why the court awarded to charge 500,000 UAH in the applicant’s favour. The judgment of the court of appeal was delivered on May 23, 2013, when the affected child was 16 years old. It is the first civil case when the court recognizes the fact of infection with HIV, moreover to award such a sum a significant sum of compensation.
37. Starosotskaya case
In July 2013 Natalia Starosotskaya, Ukrainian national, gave a birth to female baby. At the time the woman was charged in trafficking in drugs and was kept in the detention centre (SIZO) in Kharkiv. The criminal case was trialed in one district court in rural area, and the woman with her baby were escorted to the court at the distance of 60 kilometres. The condition in cell for the baby and the mother in SIZO was not proper. The SLC lawyer at once after his admission to the case lodged to the court the motion to provide the child and her mother with adequate living conditions in SIZO, necessary nutrition, medical aid, and not keep the child in the cell in courtroom during hearing of the case.
The court decided to change the preliminary detention for home arrest, and now the women and child are at home.
38. Stolyarenko case
In February 2013 three 10-year olds, two boys and one girl were walking in one of the neighborhoods Frunze district of Kharkiv. At this time the 13-year-old boy pulled the key of a flat from a pocket of the tipsy owner of the flat, lived in the nearby house, and entered to the flat. 10-year-olds had no relation to the actions of 13-year-old boy, but they knew him.
After some time, the elder’s boy mother started to seek him, and the younger boys began to call him to his home. The elder boy invited them to come to the flat, and after that he pulled the girl that stayed next to the boys into the flat. At this time, the apartment owner, which was getting sober, come to the apartment, saw children and called the police.
Search police officers came into the flat took all four kids to the district police station. Only two hours later, parents reported that the children are in the police station. But after the arrival of the parents to the station parents were not given the opportunity to see his children. Around 22-30, i.e., almost 6 hours after the factual detention of the children, and due to active actions of the lawyer invited by the children’s parents, the children were released from police. So this time they were kept in the police despite the fact that police knew immediately that 10-year-olds had not committed any criminal acts.
It was later revealed that the detention of children has not been registered and therefore was unlawful. The lawyer had filed a criminal complaint for the actions of the police officers to the District Prosecutor’s Office, which gave the answer that there were no violations by the. Then the complaint had lodged to the prosecutor’s office of Kharkiv city was returned again to the District Prosecutor’s Office, and then – to the district police station, whose officers had detained children.
The father of one of the 10-year-old boy, who had invited counsel to defend the children from the police, was brought to administrative responsibility for dereliction of duty in relation to parenting. Fortunately the appellate court reversed a decision of the trial court and closed the case.
At the end parents of the children refused to continue the complaining process, and lawyer has ended their legal presentation.
39. Surzhko case
In summer 2013 Valeriy Surzhko, Ukrainian national, was arrested for trafficking in drugs, and then was placed to Mariurol SIZO. The man was drug dependant person and the patient of opioid substitution therapy (OST). After his detention his substitution therapy was discontinued without detoxication, although in was a clear violation of national health legislation and special regulation of State Penitentiary Service to Ukraine. Moreover the person had a lot of serious diseases, namely HIV infection of IV clinic stage, wasting syndrome, hepatitis B and C, infiltrative pulmonary tuberculosis, tuberculosis of intrathoracic nodes. The inmate periodically was placed for in-patient treatment in a medical cells of the SIZO.
Sometimes the defendant was escorted to hearing in a district court in bad health condition. Once he was escorted to a court in the day when he was on in-patient treatment in the SIZO medical facilities. During the hearing he had felt himself badly, and the court called ambulance. He was given the first aid and then the court continued the hearing although he and his defence counsel objected against conducting the hearing because of his inability to participate in the proceedings, to ask witnesses etc.
The defendant applied to a court with a motion to release him from the sentence because of his serious diseases which cannot be treated in the conditions of the detention centre, but in vain. Now the proceedings in court are pending.
40. Vradiy case
In May 2012 Mr Vradiy, the inhabitants of Smila Cherkassy region, was illegally detained by a police officer U. and prosecuted for committing an administrative offense - disorderly conduct. The court sentenced Mr Vradiy to seven days of administrative detention, during which he was tortured by the police in order to force him to sign a confession in crimes, which he had not committed. Mr Vradiy didn’t sign any document. Because of his refusal he was severely beaten and subjected to electric current. He served the remainder of administrative detention without medical assistance.
When he was released, he appealed to the relevant authorities with complaint on crimes committed against him by the police. On June, 25 he received a certificate of a forensic medical examination, according to which he had scars of different shapes on the body and they were classified as light bodily injuries.
Representing the Mr Vradiy’s interests in this case was performed by a lawyer of the Strategic Litigation Centre (the SLC). In particular, in 2013 it was proved at the court that Mr Vradiy was arrested and was brought to administrative responsibility illegally. The case was transferred to the prosecutor’s office for investigation. Currently the court consideration of criminal case against the police officer U. for committing the aforementioned acts in respect to Mr Vradiy is taking part. The court consideration is at the stage of the court investigation now. The witnesses are giving their testimonies at the court questioning.
Besides, in 2013 the criminal proceedings against the police officers for abuse of power and torture Mr Vradiy was transferred to the court. Currently the court consideration of criminal case is at the stage of the court investigation. The witnesses are giving their testimonies at the court questioning. In summer 2013 Mr Vradiy died under mysterious circumstances at the time of his arrest by the police, among whom one of the police officers, who tortured him in May 2013, was, namely Mr Ch.
However, criminal proceedings were closed. The investigation provided with a version of Mr Vradiy’s suicide. The lawyers appealed against the decision to close the criminal proceedings to the courts of all instances, pointing to the possible involvement of police officers to a death of Mr Vradiy, but the appeals were rejected.
Also the courts of all instances rejected the lawyer‘s appeal against the decision of the prosecutor’s office on unlawful accusation of Mr Vradiy in a murder of a police officer that took part in the applicant’s arrest, which is according to investigator’s version caused applicant’s desire to commit a suicide. Neither the prosecution nor the court used the evidences in support of these versions as the basis for their decisions. The explanations of the relatives of the applicant and lawyer were not taken into account. The lawyer of the SLC keeps participating as a representative Mr Vradiy in two aforementioned court proceedings against police. Besides, the lawyer of the SLC plans to file an application on behalf of the relatives of Mr Vradiy, who dead, to the European Court of Human Rights.