TERESHCHENKO v. UKRAINE
Inadmissible
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
The applicant, Ms Iryna Mykolayivna Tereshchenko, is a Ukrainian national who was born in 1966 and lives in Kyiv. She was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The facts of the case, as submitted by the applicant, may be summarised as follows. On 10 September 2004 the police officers took the applicant to the Holosiyivskyy District Police Department of Kyiv (“the Police Department”) in order to question her about a crime allegedly committed by I., one of the applicant’s colleagues. A number of the applicant’s co-workers were also taken to the Police Department for the same reason. According to the applicant, she was held in the Police Department from 3 p.m. on 10 September to 1 a.m. the next day. At 10 a.m. on 11 September 2004 the applicant was allegedly again taken to the Police Department, where she was questioned further and released at 7 p.m. that day. While the applicant was being held in the Police Department she was allegedly physically and psychologically coerced to testify against I.; the reasons why she had been brought to the Police Department were not immediately explained to her; and her relatives were not informed of her whereabouts. On 19 January 2005 the applicant lodged a complaint under Article 106 of the Code of Criminal Procedure (“the CCrP”) with the Holosiyivskyy District Court of Kyiv (“the District Court”) against the police officers. She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her. The applicant invoked Articles 29 and 55 of the Constitution in support of her complaint. By letter of 1 February 2005 the President of the District Court replied that her complaint under Article 106 of the CCrP could not be considered by the court since she had not been arrested as a suspect. On 22 February 2005 the applicant lodged with the Prosecutor’s Office of the Holosiyivsky District of Kyiv (“the Prosecutor’s Office”) an application for criminal proceedings to be instituted against the police officers. The applicant alleged that she had been unlawfully arrested, the reasons for the arrest had not been explained to her, and she had been illtreated by the police officers. By a letter of 24 March 2005 the Prosecutor’s Office informed the applicant that her application was unsubstantiated. It noted that at about 6 p.m. on 10 September 2004 the applicant and her co-workers were taken to the Police Department for an interview concerning a crime allegedly committed by I.; at 9 p.m. the applicant left the Police Department; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under Article 97 of the CCrP. On 9 April 2005 the applicant challenged the Prosecutor’s Office’s reply of 24 March 2005 before the District Court in accordance with the procedure provided by Article 236-1 of the CCrP. The applicant alleged that the Prosecutor’s Office had unlawfully refused to institute criminal proceedings. On 22 June 2005 the District Court dismissed the applicant’s complaint. It noted that under Article 236-1 of the CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings. No such a decision had been taken in the applicant’s case. On 29 June 2005 the applicant and her lawyer lodged an appeal against that decision. On 8 September 2005 the Kyiv City Court of Appeal upheld the decision of the District Court. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers...” “A prosecutor, investigator, body of inquiry or a judge shall be obliged to accept applications or communications as to the committed or prepared crimes, including in cases that fall outside their competence. Following an application or communication about a crime the prosecutor, investigator, body of inquiry or a judge shall be obliged, within the three-day time limit, to adopt one of the following decisions: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; (3) to remit the application or communication for further examination according to jurisdiction. ...” “The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information which gives grounds for suspicion that a person has committed a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel, starting with the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee. A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for the detention shall be sent to him as well. ... Within seventy-two hours of the arrest, the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body which carried out the arrest accordingly.” “Complaints against a decision of a prosecutor, an investigator or a body of enquiry to refuse to institute criminal proceedings shall be lodged with the district (city) court ...by the person whose interests are touched upon, or a representative of that person, ...within seven days of its receipt or information given by the prosecutor that he has refused to quash the decision.” “Complaints against a decision of a prosecutor, investigator or body of inquiry to refuse to institute criminal proceedings shall be examined by a single judge within ten days of the arrival of the complaint at the court. The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date when it will be examined. If necessary, a judge shall hear explanations by the complainant. ... the judge shall take one of the following decisions: 1) to quash the decision refusing to initiate criminal proceedings and return the case file materials for additional examination; 2) to reject the complaint. Within seven days of its adoption the decision of a judge may be appealed against to the court of appeal by a prosecutor or a complainant. A copy of the judge’s decision shall be sent to the person who has adopted the contested decision, the prosecutor and the complainant.” Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials. In particular, Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court. Article 248-3 §§ 1 and 4 of the Code provided that such complaints were outside the courts’ jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor’s office or court which could be challenged by a different procedure. In this decision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor’s offices in cases where the legislation provided only for a non-judicial remedy. According to this Resolution, inactivity on the part of a body of enquiry, investigator or prosecutor resulting in a decision not being taken under Article 97 § 2 of the Code of Criminal Procedure could be challenged by a procedure established in Chapter 31-А of the Code of Civil Procedure.