OMELCHUK v. UKRAINE
Inadmissible
Angelika Nußberger;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
The applicant, Mr Oleksandr Borysovych Omelchuk, is a Ukrainian national who was born in 1977 and lives in Kozyatyn. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 May 2004 the applicant participated in a hearing before the Zhytomyr Regional Court of Appeal (“the Regional Court”) as a legal representative. The judge dealing with the case found him to be in contempt of court. The applicant, in turn, approached the police officers in charge of keeping order on the court’s premises and told them that the judge had committed a crime. A dispute followed, as a result of which the applicant was arrested for disobeying the police. Later on 6 May 2004 the applicant was taken to the Zhytomyr City Police Department, where he was allegedly placed in a cage for several hours without any food or access to toilet facilities. On 7 May 2004 the Korolyovskyy District Court of Zhytomyr (“the Korolyovskyy Court”), by a final ruling delivered following a hearing at which the applicant was present, found him guilty of disobeying police orders and sentenced him to ten days’ administrative detention. On 15 May 2004 it issued another final ruling, again doing so after a hearing at which the applicant was present, by which it found him guilty of contempt of court and sentenced him to fifteen days’ administrative detention. While waiting for the hearing on that date, the applicant was allegedly held in a cage in the court’s basement without food. On 11 April 2006 the Supreme Court quashed both rulings of the Korolyovskyy Court under the extraordinary review procedure sought by the applicant and remitted the case for fresh examination. It noted, in particular, that the first-instance court had failed to duly establish the facts of the case, to indicate in a clear manner exactly what had amounted to contempt of court and disobeying police orders, to give adequate reasons for its treatment of the applicant’s arguments or to consider applying less restrictive sanctions. On 3 May 2006 the Korolyovskyy Court examined the case in the applicant’s absence and issued two final rulings, by which it terminated the administrative offence proceedings against him as time-barred. On 5 July 2004 the applicant introduced with the Bogunskyy District Court of Zhytomyr (“the Bogunskyy Court”) and with the Korolyovskyy Court two identical complaints against the Zhytomyr Regional Police Department, alleging, in particular, that they had subjected him to ill treatment during his arrest on 6 May 2004. On 30 September 2004 the Bogunskyy Court forwarded the complaint to the Korolyovskyy Court in accordance with the rules of territorial jurisdiction. According to the applicant, the Korolyovskyy Court handled both of his complaints separately. By a ruling of 5 October 2004 it stayed the examination of one of the complaints and invited the applicant to specify his complaint and substantiate the violations he was complaining of by 20 October 2004. As this was not done, on 21 October 2004 the court decided to deem the complaint as having not been lodged and to return it to the applicant. On 8 December 2004 the Regional Court upheld that ruling. As to the second complaint, on 28 December 2004 the Korolyovskyy Court refused to accept it for examination, having noted that it contained allegations of criminal offences and therefore had to be submitted to the prosecution authorities for criminal investigation. On 21 April 2005 and 26 July 2007 the Regional Court and the Higher Administrative Court respectively upheld that ruling. The applicant acted as the legal representative of Ms B. and Ms K. in civil proceedings. He also represented a private company, L., before the domestic tax authorities. Following a refusal by the local tax office to register the aforementioned company as a taxpayer, the applicant unsuccessfully sought the initiation of criminal proceedings against the officials involved. On 25 November 2004 the Court received the first letter from the applicant expressing his intention to introduce an application and outlining the substance of his complaints. The letter, which was dated 14 October 2004, had among its enclosures copies of certain newspapers issued on 21 October and 12 November 2004. Its envelope was postmarked 17 November 2004. The provisions of the Administrative Offences Code (“the AOC”) concerning administrative arrest as punishment for an administrative offence and the lack of an ordinary appeal procedure are summarised in the judgment in the case of Gurepka v. Ukraine, no. 61406/00, §§ 28-32, 6 September 2005. Article 267 of the AOC provided, inter alia, that an arrest on grounds of an administrative offence could be challenged by the arrestee before the supervising authority, a prosecutor or the courts. By virtue of the Amendment Act enacted on 17 November 2008, a second level of jurisdiction was introduced into the administrative offence procedure (Article 287 of the AOC).