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FIFTH SECTION

Application no. 13406/06
Sergey Valeryevich OSAKOVSKIY
against Ukraine
lodged on 28 March 2006

STATEMENT OF FACTS

The applicant, Mr Sergey Valeryevich Osakovskiy, is a Ukrainian national who was born in 1979 and lives in Kharkiv.

A.  The circumstances of the case

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

On 18 August 2003 F. sustained serious head injuries, of which he died soon afterwards.

On or around that date criminal proceedings were instituted into the incident and the applicant was put on the wanted list as a suspect.

On 8 June 2004 the applicant was arrested by the Leninskyy District Police of Kharkiv, questioned in the police headquarters and confessed of having inflicted injuries on F.

On 9 June 2004 the applicant confirmed his confession of having injured F. in the course of a reconstitution of the crime scene in presence of several witnesses and lawyer S., invited by the investigative authorities.

On 11 June 2004 the applicant was placed in the Kharkiv pre-trial detention centre (SIZO) and examined by the SIZO medical staff. He was certified as having no bodily injuries.

On 23 September 2004, while detained in the SIZO, the applicant confessed of having killed a certain D.

On an unspecified date the applicant obtained a new lawyer, B., and retracted his previous confessions. He alleged that the confession of having injured F. had been extracted from him by the police in absence of a lawyer and under torture. In particular, three police officers had beaten him, electrocuted his body and ordered him to smoke with a gas mask on his face. As regards the confession of D.’s murder, it had been given under duress from the SIZO authorities.

On 11 November 2004 the investigative authorities discontinued proceedings against the applicant on charges of D.’s murder, having found that there was insufficient evidence of his involvement in this crime.

On unspecified dates the applicant was released from the SIZO under an undertaking not to abscond and committed to stand trial before the Leninskyy District Court of Kharkiv on charges of inflicting grave bodily injuries resulting in F.’s death.

On 16 March 2005 the Leninskyy District Court of Kharkiv remitted the case for further investigation, having found that the applicant should have been charged with having murdered F., rather than injured him. The court likewise ordered that the applicant’s ill-treatment allegations be verified. By the same decision, the court remanded the applicant in custody. The part of the court decision pertinent to remanding the applicant in custody read as follows:

“The court considers also that the preventive measure in respect of [the applicant] should be substituted by the custodial one, since, if he remains at liberty, he may hide from the investigative authorities, which fact would interfere with the establishment of the true facts of the case”.

The applicant, represented by B., appealed, seeking to be released from custody.

The prosecutors’ office likewise appealed, alleging that the trial court had acted prematurely in qualifying the applicant’s actions in law and that the final decision in this regard should have been taken after the trial.

On 7 July 2005 the Kharkiv Regional Court of Appeal allowed the prosecutors’ office’s appeal and remitted the case back for trial. It also rejected the applicant’s request for release from custody, without expounding on the reasons of such rejection.

On 23 August 2005 the Leninskyy District Court of Kharkiv ordered the prosecutors’ office to inquire into the applicant’s ill-treatment complaints.

On 12 September 2005 the applicant underwent a forensic medical examination, the results of which were not communicated by the applicant to the Court.

On the same date the Leninskyy District Prosecutors’ Office of Kharkiv refused to institute criminal proceedings against the police officers, implicated by the applicant in his ill-treatment, for want of evidence of such ill-treatment.

On 19 December 2005 the District Court remitted the criminal case against the applicant for further investigation, having found that the evidence collected was insufficient for his conviction and that its collection was marked by various breaches of applicable procedure. The court also ordered a further investigation of the applicant’s ill-treatment allegations. In the same decision the District Court rejected the applicant’s request for release from custody, without expounding on the reasons.

On 18 January 2006 the Kharkiv Regional Prosecutors’ Office revoked the decision of 12 September 2005 not to institute criminal proceedings into the applicant’s allegations of ill-treatment and ordered further inquiries.

On 4 February 2006 the Leninskyy District Prosecutors’ Office of Kharkiv for the second time refused to institute criminal proceedings into the applicant’s ill-treatment complaint. In their decision they noted that the applicant’s version of events was full of inconsistencies and overall improbable. For instance, contrary to his allegations, it was physically impossible to smoke in a gas mask or be tortured in the basement of the Leninskyy District Police Office, since there was no basement floor in the building. They further noted that the applicant’s conduct after arrest and his further submissions might have been affected by his psychiatric record. In particular, in 1994 he had been treated in a children’s psychiatric hospital for paranoid schizophrenia.

The applicant complained about this decision to various authorities, including the General Prosecutor’s Office, however, to no avail.

On 27 April 2006 the prosecutors’ office likewise refused to institute criminal proceedings into alleged ill-treatment of the applicant in the SIZO with a view to extract a confession of D.’s murder, having found that there was no case to answer. Subsequently (on 23 August 2006) this decision was revoked by the Kharkiv Regional Prosecutors’ Office and a further inquiry was ordered. The applicant did not inform the Court of the outcome of this inquiry or any further developments with respect to the investigation of his allegations of ill-treatment in the SIZO.

On 29 May 2006 the applicant was notified that a district court had granted his wife’s application for divorce and apparently gave her custody over their minor son.

On 18 August 2006 the District Court acquitted the applicant of the charges concerning infliction of injuries on F. It found that the body of evidence collected by the investigative authorities was neither sufficiently coherent, nor comprehensive, and that the doubts as to the applicant’s guilt should be interpreted in his favour. It further noted that the applicant’s first lawyer S., who had been present during the reconstruction of the crime scene on 9 June 2004, had filed no requests on his behalf, although there had been serious procedural breaches in organising this action. The court concluded that the applicant’s initial confessions had been given under circumstances, which could not exclude unlawful pressure. They therefore could not be taken into account.

On 30 October 2007 the Kharkiv Regional Court of Appeal annulled the applicant’s acquittal and remitted the case for further investigation.

In September 2011 the applicant informed the Court that since that date no further developments in his case ensued.

On unspecified dates the judicial authorities refused the applicant’s request for copies of unspecified documents.

B.  Relevant domestic law

The relevant provisions of domestic law concerning prevention of and responsibility for ill-treatment have been summarised in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).

The relevant provisions of Articles 148, 149, 150 and 237 of the Code of Criminal Procedure of Ukraine, which concern pre-trial detention, can be found in the judgment in the case of Molodorych v. Ukraine, no. 2161/02, § 57, 28 October 2010.

COMPLAINTS

The applicant complains that he was tortured by the police to extract false confessions; that he was detained for a long time without an effective possibility to appeal and that the criminal proceedings against him were lengthy and unfair. The applicant alleges that the above complaints are indicative of breaches of Articles 2, 3, 5 §§ 3 and 4, 6, 8, 9, 10, 13, 14 and 16 of the Convention and that his criminal prosecution was most likely connected to his affiliation with Yuliya Timoshenko political party.

In addition, the applicant complains, without invoking any Convention provision, that the divorce proceedings were unfair and under Article 34 of the Convention that the judicial authorities refused to provide him copies of unspecified documents.

QUESTIONS TO THE PARTIES

1.  Has the applicant been subjected to torture, inhuman or degrading treatment in breach of Article 3 of the Convention in order to force him to confess of criminal acts?

2.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

The Government are requested to provide copies of all decisions concerning ordering or extending the applicant’s term detention on remand and copies of the applicant’s appeals and requests for release.

3.  Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

4.  Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?