LYSAYA v. UKRAINE
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
1. The applicant, Ms Lyudmila Anatolyevna Lysaya, is a Ukrainian national who was born in 1968 and lives in Bokovo-Platovo, in the Lugansk region. She was represented before the Court by Mr N. K. Kozyrev, a lawyer practising in Lugansk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 10 September 2000 the applicant’s husband, Mr L., who had no previous criminal record, was apprehended on suspicion of theft. The same day he confessed to having been an accomplice in a theft committed with two other individuals. 4. On 13 September 2000 the prosecutor of Antratsyt charged the applicant’s husband with theft and decided to place him in the Temporary Detention Centre of the Antratsyt Police Department (the ITT) in cell no. 6, which he shared with three other detainees, Mr S., Mr A. and Mr Kh. 5. On 14 September 2000 the applicant’s husband was examined by a medical team at his own request. A doctor gave him an injection of chloromazine, finding that the applicant’s husband was suffering from minor bodily injuries and hallucinations as a result of alcohol intoxication. 6. On 17 September 2000 at 10.25 a.m. the ITT administration requested medical assistance for the applicant’s husband. He was transferred by ambulance at 10.40 a.m. to the emergency unit of the Gorlivka Central Hospital, where he died on 18 September 2000. 7. According to the autopsy report of 19 September 2000, the applicant’s husband died from serious multiple bodily injuries, namely; head and chest injuries, a brain haemorrhage, a broken chest bone, broken ribs on both sides, injuries to his lungs inflicted by fragments of broken ribs and chest bones, and an internal haemorrhage into the kidneys and stomach. 8. On 2 October 2000 the applicant lodged a complaint with the General Prosecutor’s Office against the officers of the Antratsyt Police Department for murdering her husband. 9. On 12 October 2000 the Antratsyt Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s husband. 10. On 13 October 2000 the Prosecutor of Antratsyt sent a petition to the Head of the Antratsyt Police Department, referring to violations of regulations in the Antratsyt ITT, in particular the placing of persons without any previous criminal record with those who had been convicted before, and failure of the ITT officers to comply with their duties properly and to react effectively to breaches of discipline by detainees. The Prosecutor requested that the officers responsible for the situation involving the applicant’s husband be disciplined. 11. On 17 October 2000 the Antratsyt Police Department conducted an internal inquiry, which resulted in disciplinary sanctions against some of the police officers. The results of the disciplinary proceedings were reviewed and overruled on 24 October 2000 by the Lugansk Regional Police Department, which issued an order acknowledging that the failure of the officers of the Antratsyt police station to isolate the applicant’s husband and the violation of police regulations had led to serious circumstances. They decided to impose stricter disciplinary sanctions on those responsible and their superiors. As a result, four officers were downgraded in their positions, nine officers were warned about their partial non-compliance with the requirements of their posts, and two more officers were reprimanded. 12. On 30 October 2000 the investigation charged Mr S. with inflicting bodily harm on the applicant’s husband. 13. On 20 November 2000 an additional forensic medical examination was ordered by the investigator to define which injuries had been inflicted on the applicant’s husband by each of his cellmates. 14. On 22 November 2000 the investigation charged Mr A. with inflicting bodily harm on the applicant’s husband. 15. On 27 November 2000 the investigation conducted an on-site reconstruction of the crime with Mr S. 16. On 20 December 2000 the additional forensic medical examination was carried out. 17. On 25 December 2000 the prosecutor Zh. refused to institute criminal proceedings against the police officers of the Antratsyt Department for lack of proof of their involvement in the crime 18. On 25 December 2000 the applicant filed a claim for damages against Mr S., Mr A. and Mr Kh. 19. On 26 December 2000 the investigation charged Mr Kh. with inflicting bodily harm on the applicant’s husband. 20. On 27 December 2000 the applicant studied the case file, which contained all the procedural decisions taken prior to that date. 21. On 30 December 2000 the investigation was completed and the criminal case was sent to the Antratsyt Town Court (“the Antratsyt Court”) for examination. 22. On 19 January 2001 the Antratsyt Court held a preparatory hearing and accepted the case for examination. 23. On 8 February 2001, the Non-Governmental Committee for the Protection of Constitutional Rights and Freedoms of Citizens allowed the applicant’s request for assistance in the protection of her rights in the proceedings and authorised Mr Kozyrev to act in the criminal proceedings as a “public accuser” in her interests. The same day the above-mentioned NGO requested the Antratsyt Court to admit Mr Kozyrev as a “public defender” in the criminal proceedings concerning the death of the applicant’s husband. 24. In the course of the proceedings, the applicant alleged that her husband had been tortured by the police, had had a broken skull and metal objects under his nails. On 3 April 2001 an additional forensic medical examination, ordered by the court, provided further clarifications in relation to the previous expert opinions. The expert confirmed that the applicant’s husband had sustained numerous injuries, but denied the existence of the broken skull and presence of metal objects under the nails of the victim, as alleged by the applicant. 25. On 15 June 2001 the Antratsyt Court found Mr S., Mr A. and Mr Kh. guilty of inflicting bodily injuries on the applicant’s husband, causing his death. The court also found that the police officers had had no reason to beat the applicant’s husband, as he had already pleaded guilty by the time of the incident. It also found that the applicant’s husband had been suffering from chronic alcoholism and had been very aggressive towards the other cellmates. It found that the injuries had been inflicted by the persons who were held in the same cell with the applicant’s husband, who had been defending themselves against his aggressive behaviour, which had been caused by his alcohol-related dependence (delirium tremens). The court stated that the applicant’s husband had sustained the following injuries on 14 September 2000: a cerebral haemorrhage, haemorrhage of both eyelids, left auricle and lips, a broken nose, an injury to the lower eyelid, abrasion of the lumbar region, a haemorrhage of the right kidney capsule and bruises to the lumbar region, all of which amounted to “moderate bodily injuries” for the purposes of assessing the impact on his health. The court further established that on 14-15 September 2000 the applicant’s husband had been severely beaten by Mr S. and had had a conflict with other detainees. Moreover, it found that on 16 September 2000 Mr S. had tied the applicant’s husband up with a shirt and left him lying injured on the floor of the cell until the next morning. The court sentenced Mr S., Mr A. and Mr Kh. to seven, three and two years of imprisonment. The judgment also mentioned that no civil claim had been lodged in the case. 26. On the same day the Antratsyt Court made a separate ruling concerning shortcomings in the work of investigation. It noted that the allegations of the applicant as to signs of torture had not been fully checked at the pre-trial stage and therefore the court had had to order an additional forensic examination to verify the applicant’s allegations (see paragraph 24 above), although that examination could have been carried out at the pre-trial stage. 27. On 21 June 2001 Mr S. lodged an appeal in cassation with the Lugansk Regional Court. Not denying the fact that he had beaten the applicant’s husband, he claimed that he had acted in self-defence and therefore requested a re-examination of the case. 28. Having been informed that Mr S. had lodged an appeal against the judgment of 15 June 2001, the applicant decided not to appeal against that judgment. She did not submit any written submissions to the appeal of Mr S. According to the applicant she had expected to present her arguments orally, but she had not been duly notified of the date of the hearing. According to the Government, the relevant notification had been sent to the applicant. 29. Following amendments to the Code of Criminal Procedure, which entered into force on 29 June 2001 and introduced three levels of jurisdiction in lieu of two, the Lugansk Regional Court (now the Lugansk Regional Court of Appeal) examined the case as a second, appellate instance on 7 September 2001. Mr Kozyrev, who had allegedly found out about the hearing by chance, was not allowed to present his arguments to the Lugansk Regional Court of Appeal, since he was not legal counsel for the applicant or any other party, while the procedural figure of public accuser, in which capacity Mr Kozyrev had entered the proceedings in the first instance, had been completely abolished following the above-mentioned amendments to the Code of Criminal Procedure. The court, in the absence of the parties, upheld the judgment of 15 June 2001 with minor amendments. It found no evidence that injuries had been inflicted on the applicant’s husband by police officers. 30. The applicant appealed in cassation to the Supreme Court. She maintained that her husband had been killed by the police officers and the sentenced persons had confessed to a crime that they had not committed. She further complained that she could not present her arguments to the court of appeal as she had not been duly summoned to it. 31. On 11 July 2002 the Supreme Court rejected the applicant’s appeal in cassation against the judgment of 15 June 2001 and the decision of 7 September 2001, respectively, as being unsubstantiated. It also found the conclusions of the lower courts well-founded. 32. Prior to 29 June 2001 the criminal proceedings in Ukraine had comprised two levels of jurisdiction: a first-instance court and a court of cassation. After a judgment had been given by a first-instance court, the parties had seven days to lodge an appeal in cassation. 33. The Code defined the roles of “public accuser” and “public defender”, which were introduced in Soviet times with the aim of achieving a more active participation of the public in criminal proceedings. Under Article 265 of the Code of Criminal Procedure representatives of non-governmental organisations and groups of employees could participate in judicial proceedings (not at the stage of investigation) both on the side of the prosecution and on the side of the defence. The court could rule to allow a representative of an NGO to participate as a “public accuser” in the court hearings on behalf of his or her organisation. Under the said Article the public accuser was entitled to give testimonies, to examine evidence, make requests, express his or her opinion about the requests of other participants in the proceedings, to request withdrawals, to take part in the court deliberations, and give his or her opinion. The public accuser was not entitled to appeal against a judgment of a court in a criminal case in which he or she had participated. The role of public accuser was complementary to that of the prosecutor and the representative of the aggrieved party. 34. Following the Amendment Act of 21 June 2001 (which entered into force on 29 June 2001), criminal proceedings are examined at two or three levels of jurisdiction depending on the seriousness of the case. If the case was first decided in a local court, the decision is appealable to the regional court of appeal and then to the Supreme Court, as a court of cassation. The Act also repealed the provisions concerning the roles of “public accuser” and “public defender” in their entirety.