CASE OF SYLENOK AND TEKHNOSERVIS-PLUS v. UKRAINE
Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
5. The first applicant (“the applicant”) was born in 1963 and lives in Chernigiv. The second applicant (“the applicant company”) is a limited liability company owned by the applicant and registered and based in Chernigiv. 6. On 8 January 2001 the applicant was arrested in the street by plain-clothes police officers – Mr S., Mr K., Mr A. and Mr G. The applicant resisted his arrest, being unaware at the time that they were police officers. According to the applicant, during the arrest and later on at the police station he was beaten by the police officers. 7. On 11 January 2001 the applicant was hospitalised with a broken rib, pneumothorax, head concussion and numerous bruises on his body. A forensic medical examination conducted between 11 January and 1 February 2001 revealed numerous bruises on different parts of the applicant's body and brain concussion. At the same time it did not confirm that the applicant had a broken rib. 8. On 18 January 2001 the applicant complained to the Chernigiv City Prosecutor's Office (the CCPO) about the beatings. 9. On 26 January 2001 the CCPO refused to institute criminal proceedings in respect of the applicant's allegations. It noted that according to the explanations of the police officers the applicant had violently resisted his arrest and therefore they had applied force and had used handcuffs. Furthermore, the police investigator Mr Z. had explained that he and other police officers had not committed any unlawful actions involving the applicant at the police station. Therefore, it concluded that the use of force against the applicant had been lawful. 10. On 12 March 2001 the Chernigiv Regional Prosecutor's Office (the CRPO) quashed the decision of 26 January 2001 owing to incompleteness of the investigation and instructed the CCPO to conduct additional investigative actions, including questioning of the applicant and detailed questioning of each police officer involved in the incident about the circumstances of the applicant's arrest and the individual actions of each police officer involved. 11. An additional forensic examination of 16 March 2001 concluded that the applicant had numerous bruises resulting from the application of force 45 to 50 times, a broken rib, chest trauma, pneumothorax and brain concussion. 12. On 5 April 2001 the CCPO refused to institute criminal proceedings on the ground that, as it transpired from the testimony of the police officers involved in the incident, they had applied force lawfully during the arrest and had not used any unlawful means against the applicant in detention. 13. On 17 April 2001 the Chernigiv Desnyansky District Court (the Desnyansky Court) quashed the decision of 5 April 2001 on the ground that the applicant and eyewitnesses to the incident had not been questioned and that the decision of the CCPO had not established the circumstances in which the applicant had received so many injuries. The court ordered criminal proceedings to be instituted in the case. 14. On 17 May 2001 the CCPO started the criminal investigation. Between 28 May and 5 July 2001 seven witnesses were questioned. 15. Between 20 May and 6 December 2001 the applicant was summoned five times by the investigator but failed to appear. 16. On 27 June 2001 the applicant was found guilty of inflicting medium bodily harm on one of the arresting officers – Mr G. This decision was upheld on appeal but quashed in cassation proceedings on 7 September 2004. 17. On 24 July 2001 the criminal proceedings into the infliction of bodily harm on the applicant were suspended for failure to identify the offenders. 18. On 11 December 2001 the CRPO quashed the decision on suspension of the criminal proceedings and they were resumed. 19. On 20 December 2001 the applicant was summoned by the investigator but failed to appear. 20. On 26 December 2001 three witnesses were questioned. 21. On 23 January 2002 the applicant was recognised as a victim in the case. 22. On 28 January 2002 the applicant was questioned as a victim. 23. Between 29 January and 18 March 2002 nine witnesses were questioned. 24. On 4 February 2002 the applicant failed to appear for questioning. On this date and further on 8 and 14 February 2002 the investigator ordered that the applicant be brought before him (примусовий привід). 25. On 14, 15 and 19 March 2002 the cross-examination between the applicant and Mr T., and police officers G., V., Gr., K. and L., took place. 26. On 20 May 2002 the criminal proceedings were suspended for failure to identify the offenders. 27. On 12 May 2003 the CRPO quashed the decision of 20 May 2002 on the suspension of criminal proceedings. The proceedings were resumed. 28. On 16 May 2003 the investigator requested the applicant to provide him with the medical documents concerning the incident in order to conduct an additional forensic medical examination. According to the Government, the applicant did not provide the documents requested. 29. On 25 May 2003 the criminal proceedings were suspended for failure to identify the offenders. 30. On 1 July 2005 the CRPO quashed the decision of 25 May 2003 on the suspension of criminal proceedings. The proceedings were resumed. 31. On 12 July 2005 the investigator ordered that the applicant be brought before him. At this time the applicant was detained in the Chernigiv SIZO in connection with other proceedings. 32. On 14 July 2005 the criminal proceedings were suspended for failure to identify the offenders. 33. On 5 August 2005 the CRPO quashed the decision of 14 July 2005 on the suspension of criminal proceedings. The proceedings were resumed. 34. On 16 and 24 August 2005 the applicant was summoned by the investigator but failed to appear. 35. On 14 September 2005 one witness was questioned. 36. On 15 September 2005 the criminal proceedings were suspended for failure to identify the offenders. 37. On 7 December 2006 the CRPO quashed the decision of 15 September 2005 on the suspension of criminal proceedings. The proceedings were resumed. 38. Between 25 December 2006 and 24 May 2007 ten witnesses were questioned. 39. On 12 June 2007 the CRPO terminated the criminal proceedings for lack of corpus delicti in the actions of the police officers. The CRPO noted that most of the witnesses, owing to the significant lapse of time, could not remember details of the incident and that the original testimonies of the police officers were correct and these officers had acted in accordance with the law. 40. On 11 December 2007 the General Prosecutor's Office (the GPO) quashed the decision of 12 June 2007 and remitted the case for an additional investigation. 41. On 11 February and 4 and 14 March 2008 the applicant was summoned by the investigator but failed to appear. 42. On 14 March 2008 the criminal proceedings were suspended for failure to identify the offenders. 43. On 19 January, 12 February and 26 August 2009 the applicant was summoned by the investigator but failed to appear. 44. Since September 2009, when the applicant was placed on the list of wanted persons in the context of another criminal case in which he was a defendant, the applicant has failed to appear on summons of the investigator. 45. On 5 March 2010 the CRPO received the medical documents from the applicant and on 9 March 2010 the forensic medical examination was ordered. 46. On 9 June 2004 the Chernigiv Commercial Court awarded the applicant company (from the State budget) 14,240.69 Ukrainian hryvnias (UAH) in damages, UAH 142.41 in fees and UAH 118.00 in costs and expenses. On 1 September 2004 the judgment became final and on 17 September 2004 the court issued a writ of enforcement. 47. On 17 December 2004 the applicant company lodged the writ with the Desnyanskiy District State Bailiffs' Service. 48. On 20 December 2004 the bailiffs' service refused to enforce the judgment of 9 June 2004 owing to non-compliance of the enforcement writ with the formalities. 49. On 16 February 2005 the applicant company lodged the same enforcement writ with the Chernigiv Regional State Bailiffs' Service, which rejected it the next day for lack of jurisdiction. 50. On 1 September 2006 the applicant company lodged the writ with the Central State Bailiffs' Service, which rejected it the same day, as the enforcement writ did not indicate the debtor or its location. 51. On 7 November 2006 the applicant company requested the Chernigiv Commercial Court to specify in the enforcement writ the accounts of the State Treasury from which the awarded amounts should be paid. 52. On 23 November 2006 the court rejected the applicant company's request on the ground that the representative of the Treasury had not appeared and the other parties did not know the accounts, nor were they indicated in the case-file materials. 53. On 1 June 2007 the applicant company repeatedly requested the court to bring the enforcement writ into compliance with the formalities. This request was rejected on 26 June 2007. 54. On 5 February 2008 the applicant company lodged the same request with the same court once again. 55. According to the Government, the judge of the Chernigiv Commercial Court invited the representative of the applicant's company to the court to provide explanations, but the representative failed to appear. 56. Relevant domestic law concerning the applicant's case can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007). Relevant domestic law concerning the applicant company's complaints is summarised in Voytenko v. Ukraine (no. 18966/02, §§ 20-22, 29 June 2004).