BILYY v Ukraine - 14475/03 [2007] ECHR 499 (22 May 2007)

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The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

The applicant, M Valentyn Valentynovych Bilyy, is a Ukrainian national who was born in 1977 and is currently serving his sentence in a penitentiary establishment. He is a former police officer, who was dismissed from the force on 5 May 2000.

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

1. Alleged ill-treatment of the applicant and criminal proceedings brought against him

At 10 a.m. on 22 June 2000 a police officer telephoned the applicant at home and asked him to report to the Vodopiy police station. On his arrival, at around 11 a.m., the applicant was immediately apprehended. The police asked him to admit that he had murdered a police officer. When the applicant refused to do so, three officers allegedly tied him to a chair and beat him for some twelve hours. At some point during this period a local prosecutor entered the room where the applicant was being ill-treated and reproached the officers for making excessive noise.

A legal aid lawyer invited by the police to advise the applicant during his first interrogation, saw him being beaten and informed his father about his arrest and ill-treatment. The applicant’s father immediately sent a telegram to the Prosecutor General and the Prosecutor of the Mykolaiv Region, complaining about the ill-treatment of his son.

It is unclear whether any confessions were obtained from the applicant during his detention in the Vodopiy police station.

The applicant’s arrest record (протокол про затримання) was drawn up by the police at 11 p.m. on 22 June 2000, i.e. some twelve hours after his actual apprehension.

In the morning of 23 June 2000 the applicant was taken to the Mykolaiv Regional Isolation Unit of Temporary Detention (Ізолятор тимчасового утримання, hereafter “the Mykolaiv ITU”), a police detention facility. According to a letter of the Governor of the Mykolaiv ITU, dated 26 January 2001, the applicant at his admission was examined by the officers on duty. The letter stated that due to the absence of a paramedic the officers were unable to determine whether the applicant had any bodily injuries.

On that same date, at the request of the Commander of the Vodopiy police station, the applicant was examined by an expert from the Mykolaiv Regional Bureau of Forensic Medical Examinations. The expert established that the applicant had a 1 cm long wound surrounded by fresh blood on his forehead, a rounded abrasion (0.5 cm. diameter) on his palm, and two bruises of 2x1.5 cm and 0.7x0.5 cm on his left forearm. These injuries had, according to the expert, been inflicted on 21-22 June 2000.

On 25 June 2000 the Prosecutor of the Leninsky District of Mykolaiv ordered the applicant’s detention on remand. The applicant filed an appeal against this order.

On the same day the police searched the applicant’s apartment. According to him, the officers involved were not officially assigned to the investigation team and the search warrant gave an incorrect address. Although the officers searched the whole apartment, including the parts occupied by the applicant’s father and his wife, no evidence was recovered.

On 26 June 2000, in the premises of the Mykolaiv ITU, the police officers allegedly again subjected the applicant to ill-treatment by beating him and painfully tightening his handcuffs. Following the applicant’s complaint, the investigator from the Leninsky District Prosecutor’s Office, assigned to deal with his case, ordered that further medical evidence be obtained. On 28 June 2000 an expert from the Mykolaiv Regional Bureau of Forensic Medical Examinations drew up a report, stating that the applicant had an abrasion on his temple 1.5x1 cm in size, two 0.2 cm wide abrasions around his wrists, an abrasion of 1.5x1 cm near his right armpit and a wound of 5x3,5 cm on his left thigh.

On 30 June 2000 a prosecutor and several police officers, in the presence of the applicant and two witnesses, conducted a search of the country estate (dacha) of the applicant’s father and found there the gun with which the police officer had been killed. The applicant alleges that the search was tainted by numerous procedural irregularities. In particular, the officers involved were not officially assigned to his case, the search was carried out in the absence of the applicant’s father, an occupant of the house, and the alleged discovery of the gun in the backyard was not witnessed by either the applicant or the witnesses.

On 1 July 2000 a lawyer, hired by the applicant’s family to represent him, was allowed to visit him for the first time. He reported to his father having seen signs of ill-treatment on the applicant’s face and body.

On 4 July 2000 the applicant was transferred from the Mykolaiv ITU to the Mykolaiv Regional Investigative Isolation Unit (Слідчий ізолятор, hereafter “the Mykolaiv SIZO”), a remand prison belonging to the Department of Execution of Punishments. As confirmed by a letter of the Governor of the Mykolaiv SIZO dated 15 October 2002, during his stay there the applicant contracted tuberculosis.

On 5 July 2000 the applicant was officially charged with murder, theft, illegal possession and theft of firearms and theft of official documents and stamps. The prosecution’s case was that on 21 June 2000 the applicant, a former police officer, with a view to obtaining a gun for criminal purposes, visited officer S., his acquaintance, at the Vodopiy police station. There, after having consumed alcoholic beverages, the applicant allegedly attacked S., seized his service pistol and murdered him to conceal this crime. Then, according to the prosecution, the applicant took away the victim’s documents and personal belongings, some of which he had destroyed before his arrest.

The applicant pleaded not guilty to the murder charges. He stated, and this remained his main line of defence throughout the proceedings, that on 21 June 2000 he had participated in a party at the Vodopiy police station, celebrating S.’s promotion. After the party ended, he and S. stayed alone at the station and, being drunk, began to practise disarming techniques with S.’s service pistol. The fatal shot had been fired accidentally during this exercise owing to the deceased’s failure to observe the firearms safety regulations. Anticipating accusations of murder the applicant decided to fake an attack on the police station. To that end he broke a door leading to the office of the station Commander and took away S.’s pistol, wallet and bag. The bag contained, inter alia, the official stamp of the Vodopiy police station and the deceased’s police ID. He hid the pistol at his father’s country residence and destroyed the stamp and ID.

On 27 July and 2 August 2000 the investigator conducted crime-scene experiments. During these proceedings the applicant, in the presence of his lawyer, attempted to go through the sequence of events that, according to him, had taken place at the Vodopiy police station on the night of 21 June 2000. The experiments were tape-recorded.

On 8 August 2000 the applicant was examined by a prison doctor, who diagnosed him as suffering from post concussion symptoms (such as severe headaches) after a head injury.

On 16 October 2000 the Leninsky District Court of Mykolaiv rejected the applicant’s appeal against the prosecutor’s remand order, finding no indication of any breach of procedural law.

The term of the applicant’s detention on remand was successively extended by the prosecutors until 22 September, 22 October 2000 and 16 November 2000.

On 6 November 2000 the investigator announced the completion of the pre-trial investigations. From that date until 19 December 2000 the applicant had access to the case-file.

On 26 December 2000 the prosecutor referred the indictment together with the case-file to the Mykolaiv Regional Court for trial.

On 25 January 2001 a judge of the Mykolaiv Regional Court held a preparatory hearing at which the applicant’s detention was extended pending trial.

In its judgment of 1 March 2001 the Mykolaiv Regional Court found that the prosecution’s charge of murder was based on assumptions and, accordingly, could not sustain a finding of guilt. Based on the applicant’s statements and the evidence before it the court found that the applicant was guilty of unintentional homicide (Article 98 of the Criminal Code 1961), theft (Article 140 § 1), illegal possession of firearms (Article 222 § 1), theft of firearms (Article 223 § 1) and theft of official stamps and personal documents (Article 193 § 1 and Article 193 § 3 respectively). The applicant was sentenced to a total of five years’ imprisonment with deduction of the time spent in detention on remand. The Mykolaiv Regional Court also decided that the applicant was to remain in detention pending the judgment’s entry into force.

The applicant and the prosecution appealed in cassation. On 17 May 2001 the Supreme Court examined the appeals in the presence of the prosecutor but in the absence of the applicant or his representative. The Supreme Court found that the Mykolaiv Regional Court had failed to consider contradictory evidence both for and against the applicant. The Supreme Court further held that the prosecution’s charges were based on the evidence collected at the initial stages of the investigation when the applicant was denied any rights of defence and was ill-treated by the police.

The operative part of the Supreme Court’s ruling of 17 May 2001 reads as follows:

“The judgment of the Criminal Chamber of the Nikolayev [Mykolaiv] Regional Court of 1 March 2001 in the part regarding the conviction of Belyy Valentin Valentinovich of the crimes defined in Article 98, Article 140 § 1, Article 223 § 1 and Article 222 § 1 of the Criminal Code of Ukraine is quashed and the case is to be referred to the Nikolayev [Mykolaiv] Regional Prosecutor’s office for fresh investigations. The remainder of the judgment is to be left unchanged and Belyy V.V. is to be regarded as convicted pursuant to Article 42 of the Criminal Code of Ukraine of the crimes defined in Article 193 § 1 and Article 193 § 3 of the Criminal Code of Ukraine and sentenced to a total of one year and six months’ imprisonment.”

On 6 July 2001 the Mykolaiv Regional Court of Appeal (the Mykolaiv Regional Court as renamed on 29 June 2001, hereafter “the Court of Appeal”) sent the Supreme Court’s ruling of 17 May 2001 to the Mykolaiv SIZO for execution (i.e. for the applicant’s transfer to a cell designated for convicted persons, who, according to the domestic law, should not share cells with suspects whose trials are ongoing). There is no indication that the applicant was actually moved.

On 9 July 2001 the applicant’s case-file arrived at the Mykolaiv Regional Prosecutor’s Office from the Supreme Court.

On 8 August 2001 the additional investigations were completed and the applicant was given access to the case-file.

On 12 September 2001 the Supreme Court, acting on the complaint by the applicant, reviewed his sentence and admitted that it had erred in application of the criminal law. Namely, according to Article 42 of the Criminal Code 1961 where a person was found guilty of several offences his or her combined sentence could not exceed the maximum penalty provided for the gravest of the offences involved. As both paragraphs one and three of Article 193 of the Criminal Code 1961 carried a maximum penalty of one year, the applicant’s sentence could not exceed this term. The Supreme Court held that the applicant should be regarded as sentenced to a total of one year’s imprisonment for theft of official stamps and personal documents. The question of the applicant’s detention was not addressed in this ruling.

In a letter dated 25 October 2001, issued in response to the applicant’s complaint, the Mykolaiv Regional Prosecutor’s Office stated that his continuing detention was based on an unidentified court ruling extending his detention pending additional investigations.

On 31 October 2001 the President of the Court of Appeal asked the Governor of the Mykolaiv SIZO to specify the legal grounds for the applicant’s detention. The President stated that according to the Supreme Court’s ruling of 12 September 2001 the applicant’s sentence should have expired on 22 June 2001 and his detention subsequent to that date had no legal basis. The outcome of this request is presently unknown.

On 2 November 2001 the Mykolaiv Regional Prosecutor’s Office, again in response to a complaint filed by the applicant, issued a letter in which it stated that:

“Bilyy V.V. is being held in the Investigative Isolation Unit on the grounds that Article 156 § 6 of the Code of Criminal Procedure of Ukraine, in the event of remittal of the case by the court for fresh investigation, provides for a two-month extension of the accused’s detention on remand.”

On 29 November 2001 the Prosecutor of the Mykolaiv Region indicted the applicant for murder, theft and theft and illegal possession of firearms and sent the case to the Court of Appeal.

On 28 December 2001 a preparatory hearing was held before a judge of the Court of Appeal. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand.

On 1 March 2002 the Court of Appeal composed of Judges P. (the president) and T. and two lay judges (народні засідателі), following adversarial hearings, found the applicant guilty as charged and sentenced him to fourteen years’ imprisonment. The applicant’s conviction was based on a wide range of witness and expert evidence, including the report of the medico-ballistic expert examination which stated that the gunshot wound sustained by officer S. could not have been inflicted in the circumstances described by the applicant and that, in all likelihood, the victim had been sitting when the fatal shot was fired. The court also referred to the video recording of the crime-scene experiments carried out on 27 July and 2 August 2000, in which the applicant had unsuccessfully attempted to show the disarming technique which he and the victim had allegedly practised before the shot. The Court of Appeal further relied on the results of the search of the estate of the applicant’s father. The applicant’s statements made to the police on 22-25 June 2000 (if any) were not mentioned in the judgment.

The applicant appealed in cassation. On 4 July 2002 the Supreme Court held a hearing in the presence of the applicant’s representative. The applicant’s appeal was rejected.

Following the applicant’s criminal complaint, the Mykolaiv Regional Prosecutor’s Office conducted preliminary inquiries into his alleged ill treatment. On 18 October 2000 the Deputy Regional Prosecutor, following the questioning of the applicant and the police officers involved, decided not to institute criminal proceedings. He considered that the severity of the applicant’s injuries, as determined by medical evidence, was insufficient for torture and that there was no other evidence of any wrongdoing on the part of the police. The applicant appealed against this ruling.

On 31 January 2001 the Mykolaiv Regional Court quashed the ruling of 18 October 2000, holding that the investigating authorities had failed to question the legal aid lawyer and the prosecutor, who had allegedly seen the applicant being beaten, and had failed to establish the circumstances in which the applicant had sustained his injuries.

On 14 February 2001 the Deputy Regional Prosecutor, having questioned the legal aid lawyer, again refused to institute criminal proceedings into the alleged ill-treatment. On 4 May 2001 the Mykolaiv Regional Court (Judge P.), on an appeal by the applicant, reviewed this ruling and upheld it. The court found that the argument, advanced by the applicant, that his ill treatment was proved by two medical reports “was baseless, as contradicting the real circumstances”. The domestic law as it stood at the material time did not provide for an opportunity to appeal against this court ruling.

On 8 September 2000 the applicant’s lawyer asked the Head of the Mykolaiv Regional Police Department whether the applicant had any injuries at the time when he was admitted to the Mykolaiv SIZO. By letter dated 19 September 2000 the Deputy Head of the Mykolaiv Regional Police Department informed the lawyer that during the applicant’s stay in the Mykolaiv SIZO no injuries to his body were found.

On 15 November 2000 the applicant and his father challenged this letter via the administrative complaint procedure provided by Chapter 31-A of the Code of Civil Procedure. They stated that the letter contained incorrect and misleading information as at his admission to the Mykolaiv SIZO the applicant had been diagnosed by the prison doctors as suffering from a head injury.

On 19 December 2000 the Tsentralnyy District Court of Mykolaiv (hereafter “the Tsentralnyy Court”) found for the applicant, declared the letter of 19 September 2000 unlawful and ordered that a new letter be issued. The outcome of these proceedings has not been identified.

The applicant on an unknown date in October 2001, i.e. while still detained on remand during the pre-trial investigation, filed an administrative complaint against the allegedly unlawful inactivity of the Governor of the Mykolaiv SIZO. The applicant, referring to Chapter 31-A of the Code of Civil Procedure, the Convention and Articles 29, 40, 55, 68 and 129 of the Constitution, stated that his detention after 22 June 2001 had been unlawful and that, according to Article 20 of the Pre-Trial Detention Act, the Governor was obliged to release him.

On 17 October 2001 the Tsentralnyy Court refused to entertain this complaint, holding that the applicant had failed to specify which law was violated and under which procedure this complaint should be examined: as an administrative complaint or as a complaint about a violation of his constitutional rights. The Tsentralnyy Court also held that Article 415 of the Code of Criminal Procedure made it the task of the relevant Prosecutor’s Office to exercise supervision over the activities of penitentiary establishments such as the Mykolaiv SIZO. The applicant was given nine days to rectify the above shortcomings.

On an unknown date the applicant specified that he had lodged a complaint about a violation of his constitutional rights.

On 29 October 2001 Tsentralnyy Court found that the applicant had failed to rectify the procedural shortcomings identified in the ruling of 17 October 2001 and declared his complaint inadmissible.

On 1 November 2001 the applicant lodged this administrative complaint anew. On 25 April 2002 the Tsentralnyy Court, ruling on the merits, rejected the applicant’s complaint. The court held, inter alia, that the Supreme Court, when remitting the case for additional investigations, had simultaneously ordered his detention on remand for a period of two months. This period had started to run on 9 July 2001 when the applicant’s case-file was received by the Mykolaiv Regional Prosecutor’s Office from the Supreme Court. As the time when the applicant had had access to the case file (from 8 August to 29 November 2001) was not taken into account in calculating the total period of detention on remand, the two month extension ordered by the Supreme Court had been due to expire on 2 January 2002. However, on 28 December 2001 this period had been interrupted by the trial judge’s decision to detain the applicant pending court hearings.

The applicant challenged this judgment. On 16 October 2002 the Court of Appeal upheld it. The applicant’s appeal in cassation was pending before the Higher Administrative Court at the time of the applicant’s last submissions of 30 November 2006.

On 18 October 2001 the Tsentralnyy Court declared inadmissible administrative complaint by the applicant against the allegedly unlawful failure of the Deputy Regional Prosecutor, supervising the investigations in his case, to order his release after the expiry of his one-year sentence. The court found that such a complaint could not be examined in administrative proceedings and had to be brought before the trial court during the hearings on the applicant’s criminal case.

On an unknown date the applicant’s father filed an administrative complaint against the allegedly unlawful search of his estate. On 6 September 2001 the Zhovtnevyy District Court of Mykolaiv found that it had no jurisdiction to entertain this complaint as it could be brought only in the context of the criminal trial against the applicant.

On 29 October 2001 a similar complaint by the applicant’s wife in respect of the search of her and her husband’s shared apartment was declared inadmissible by the Leninskyy District Court of Mykolaiv for the same reasons as above.

In October 2001 the applicant lodged several administrative complaints against the investigator and prosecutor dealing with his case for their alleged failure to provide him with access to certain documents in the case-file and to publicly refute the allegedly untrue information contained in the indictment. These complaints were declared inadmissible by the Tsentralnyy Court as falling outside its administrative jurisdiction.

In the same period of time the applicant challenged the Governor of Mykolaiv SIZO’s failure to give him access to certain documents in his prison case-file and to certify his letter of authority to his lawyer. The Tsentralnyy Court refused to entertain these complaints owing to the applicant’s failure to comply with the relevant procedural requirements provided by law.

In October 2001 and March 2003 the applicant filed administrative complaints against the judges of the Court of Appeal and the Supreme Court who had handled his criminal case, stating that they had unfairly disregarded certain provisions of substantive and procedural law. Those complaints were dismissed by the Zavodskyy District Court of Mykolaiv and the Pecherskyy District Court of Kyiv respectively on the ground that domestic law conferred no right to complain about the unfairness of judicial decisions other than to challenge them though ordinary appeal or cassation proceedings.

The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his detention in police custody. The applicant further complained under Articles 3 and 13 of the Convention that there was no effective investigation into his ill-treatment. He also complained of the general unsanitary conditions of his detention in the Mykolaiv SIZO as a result of which he had contracted tuberculosis

The applicant complained under Article 5 § 1 of the Convention that his arrest and his detention after 22 June 2001 had been unlawful and that his detention had initially been ordered and, until 26 December 2000, extended by the prosecutors.

Relying on Article 5 § 3 of the Convention the applicant complained that he had not been brought promptly before a court and about the allegedly unreasonable length of his detention on remand.

Under Article 6 of the Convention the applicant complained that he had been denied fair trial, in that the domestic courts when convicting him erred in their assessment of evidence, used evidence unlawfully obtained during search of his father’s estate and his statements made under duress. The applicant next complained that the presiding judge of the Court of Appeal, which convicted him, had rejected before this trial his appeal against the termination of the criminal inquiries into his ill-treatment. The applicant also stated that until 1 July 2000 he had not been allowed to meet a lawyer hired by his family, whereas the legal aid lawyer provided to him was a former police officer and had not provided him with adequate defence. He further complained that his lawyer had not been invited to participate in the hearing held before the Supreme Court on 17 May 2001. The applicant also stated that the criminal proceedings brought against him had been unreasonably long. The applicant also contended that the domestic courts’ refusals to entertain his numerous administrative complaints had infringed his right of access to a court.

The applicant complained under Article 8 of the Convention about the allegedly unlawful search of his apartment and his father’s estate.

The applicant contended that during his police service he had not been paid his salary in full. He invoked Articles 4 and 8 of the Convention.

Referring to Article 10 of the Convention the applicant complained that his dismissal from the police had been prompted by his criticism of higher authorities.

A. The applicant’s alleged ill-treatment by the police and the conditions of his detention in the Mykolaiv SIZO

The applicant complained that he had been ill-treated during his detention in the Vodopiy police station and the Mykolaiv ITU and that the State authorities had failed to undertake a thorough and effective investigation. He also complained of the inadequate sanitary conditions of detention in the Mykolaiv SIZO. He invoked Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant further complained that, in respect of his complaints of ill treatment under Article 3, he did not have at his disposal effective domestic remedies, as required by Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. The applicant’s allegedly unlawful detention from 25 June to 26 December 2000 and from 22 June to 28 December 2001

The applicant complained that his detention on remand between 25 June and 26 December 2000 and between 22 June and 28 December 2001 had been unlawful. He relied on Article 5 § 1 of the Convention, which, in so far as relevant provides as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... .”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. The allegedly unreasonable length of the applicant’s detention on remand and criminal proceedings brought against him

The applicant complains that his detention on remand lasted unreasonably long. He refers to Article 5 § 3 of the Convention, which provides as follows:

Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The applicant next complains that the length of the criminal proceedings brought against him exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention, which, as far as relevant reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court has examined the remainder of the applicants’ complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

Decides to adjourn the examination of the applicant’s complaints about ill-treatment by the police and the lack of effective remedy in this respect (Articles 3 and 13 of the Convention), the conditions of his detention in the Mykolaiv SIZO (Article 3 of the Convention), the alleged unlawfulness of his detention on remand from 25 June to 26 December 2000 and from 22 June to 28 December 2001 (Article 5 § 1 (c) of the Convention); allegedly unreasonable length of his detention on remand (Article 5 § 3 of the Convention) and the allegedly unreasonable length of the criminal proceedings against him (Article 6 § 1 of the Convention);

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You are here: BAILII >> Databases >> European Court of Human Rights >> BILYY v Ukraine - 14475/03 [2007] ECHR 499 (22 May 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/499.html Cite as: [2007] ECHR 499